Lauer v. Banning

• Decision Date: 08 June 1911
• Citation: 131 N.W. 783,152 Iowa 99
• Parties: LOTTIE LAUER, Appellee, v. BEN BANNING, Appellant
• Court: Iowa Supreme Court

131 N.W. 783

152 Iowa 99

LOTTIE LAUER, Appellee, v. BEN BANNING, Appellant

Supreme Court of Iowa, Des Moines

June 8, 1911

Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.

ACTION for breach of promise of marriage. Defendant filed a general denial and other defenses and pleas in mitigation, which so far as material will be noticed in the body of the opinion. Trial to a jury. Verdict and judgment for plaintiff and defendant appeals.

Affirmed.

Clark & Hutchinson and McHenry & Graham, for appellant.

Stipp & Perry, Parsons & Mills, and Franklin & Miller, for appellee.

OPINION

DEEMER, J.

This is the second time the case has been before us. The opinion on the first appeal will be found in 140 Iowa 319. The issues were the same on the second trial as on the first, save that defendant set out the contract copied in the former opinion as a complete defense to plaintiff's action. The testimony is not exactly the same as on the former trial plaintiff having modified some of her statements in order to prove the alleged seduction a little more clearly, and to show that the promise of marriage was after the making of the contract just referred to. Practically each and all of the questions determined on the former appeal are reargued and some additional matters are presented in the briefs to some of which we shall refer during the course of the opinion.

I. It is now claimed that the contract set out in the former opinion is a complete bar to plaintiff's action. This question was not determined on the former appeal, and all we need say now is that a reading of this contract convinces us that it is so tainted with illegality that no court should hold it a bar to an action for breach of promise of marriage. It is true of course that marriage under our law is a contract--a civil contract. But it is sui generis and is regarded in law as something more, particularly when consummated. It is a contract in which the public--the state --has an interest, and when consummated creates a status which no other contract does. The state has a peculiar interest in such contracts, and such agreements as are here relied upon, not only most seriously affect the purity of the marriage promise, but are subversive of good morals and clearly inimical to public policy. The better rule is that one can not by contract relieve another from his subsequent negligence. Johnston v. Fargo, 184 N.Y. 379 (77 N.E. 388, 7 L. R. A. (N. S.) 557), and cases cited in notes. If this be true, what should be said of such a contract as the one here involved? No citation of authorities should be needed for so plain a proposition. Assuming, however, that such a contract is valid it was no defense here for the reason that according to plaintiff's testimony this was superseded by a subsequent independent contract of marriage. True, defendant denied any promise of marriage at any time, and under the testimony and the instructions the jury must have found that a contract was made as testified to by plaintiff.

The court, on the last trial, gave the following instruction with reference to this contract: "(10) On this trial there has been offered and introduced in evidence a certain writing by and between the plaintiff and the defendant identified in the record as Exhibit 1. Though purporting to be a contract between the parties, you are instructed that such writing is not, in law, a contract because it is against public policy to permit individuals to make such a contract, and it is therefore void. For that reason it does not, as an agreement against liability, constitute a defense to plaintiff's cause of action, but may and should be considered by you as bearing upon the truthfulness of the plaintiff as a witness in this case, and upon her character both as a witness and as a pure and chaste woman." This instruction is in accord with the law announced on the former appeal. Counsel contend, however, that it was not broad enough; that it should also have been considered with reference to whether or not a contract for marriage was in fact entered into, and as to whether or not plaintiff was either raped or seduced as claimed. The instruction as given does permit the jury to consider the contract for these purposes, for it told the jury that it might consider the same in its bearing upon the truth or falsity of plaintiff's testimony in every particular. By her testimony the alleged seduction and rape were established, and she also testified as to the alleged promise of marriage. Under the instruction the jury had the right to consider this contract as determining whether or not any of these things testified to by plaintiff did in fact occur. Defendant asked no instructions with reference to this contract, and is in no position to complain of the one given. Moreover, the court did not limit the purpose for which the contract might be used save that he said it was void and could not be considered as a complete defense. The jury plainly had the right to use the contract for the purposes now suggested by appellant's counsel.

II. The record as to the testimony offered by defendant of plaintiff's former lawyer and of her physician is much the same as on the former hearing, save that on the second trial plaintiff did not waive the statute by testifying on her examination in chief as to what her physician told her. There was no waiver by her. All that she said with reference to what either told her former lawyer and her physician or as to what either told her was brought out on her cross-examination and of course this did not constitute a waiver. See former opinion for authorities upon this proposition.

The trial court gave this instruction which had reference to plaintiff's failure to introduce her physician, and to her objection to the testimony of her former lawyer and her physician: "(20) You are to try and determine this case according to the evidence produced and submitted to you in open court on the trial, and the law as given you by the court in these...