Leckey v. Bloser

• Decision Date: 01 June 1855
• Citation: 24 Pa. 401
• Parties: Leckey versus Bloser.
• Court: Pennsylvania Supreme Court

Page 401

24 Pa. 401

Leckey versus Bloser.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Cumberland county.

COPYRIGHT MATERIAL OMITTED

Hepburn and Williamson, for plaintiff in error.—The first count in the declaration is defective, no promise by the defendant being alleged, and verdict was rendered on all the counts: 1 Chitty's Pl. 396; 2 Saund. 171 n. b; 2 Id. 291; 1 T. Rep. 151; Doug. 667. Secondly, the opinions of the witnesses were not admissible: 10 Ala. R. 460; 1 Holt 283; 3 Burr. 1918; 4 Wend. 320; 8 Watts 411; 5 W. & Ser. 333. Third, after the promise by the man is proved, the demeanor of the female is evidence to show her promise; but her expressions to third persons, not in the hearing of the defendant, are not admissible: Chitty on Con. 537; 8 Car. & P. 75. Fourth, The judgments were confessed for debts owing, and they were not relevant. Fifth, The evidence as to a specific act of impropriety was not repelled by evidence of general good character: 1 Camp. 460, Bamfield v. Massey; 3 Campbell 519, Dodd v. Campbell; 3 Penna. 49-52-3, Wilson v. Sproul. Sixth, In support of the principle stated in the first point, reference was made to 12 Verm. 346, Munson v. Hastings; 2 Barr 82, Lamb v. Fries.

Miller and Watts, for defendant in error.—The use of the word plaintiff for defendant in the narr. was a clerical mistake. What appears by necessary implication will supply the place of a positive averment, particularly after verdict: 1 Chit. Pl. 324. The count was drawn from 2 Chitty 126. The mistake was amendable, and was cured by verdict: 2 Harris 513, Carson v. Hunt. 2. In 4 Cowen 355, McKee v. Nelson, it is said that in an action for breach of promise to marry, a person accustomed to observe the mutual deportment of the parties, may give his opinion as to whether they were attached to each other. Third, The declarations of the plaintiff to other persons that she was engaged to the defendant, were evidence of her assent to his engagement: 1 Jones 318; 1 Harris 334, Moritz v. Melhorn. Her assent may be proved by her acts alone: 6 Mod. 172, Mansel v. Hutton, referred to in 1 Harris 334. Fourth, The judgments were evidence. Fifth, As to the evidence of the plaintiff's general character. The cases of Dodd v. Norris, 3 Camp. 519, and Bamfield v. Massey, 1 Camp. 460, were cases respecting the character of witnesses, who might have been recalled to rebut the specific imputation charged. The contrary was held in Bate v. Hill, 1 Car. & P. 100. But in the present case the character of the plaintiff being attacked, she herself could not be heard, and evidence of her general good character and conduct was admissible as part of the res gestæ: 8 Harris 357. Sixth, The Court should not have charged on detached portions of the evidence as requested, and if there was any evidence of the promise by defendant, it was for the consideration of the jury.

The opinion of the Court was delivered by WOODWARD, J.

This was an action on the case by Caroline Bloser, the defendant in error, for breach of a marriage contract. Six errors have been assigned upon the ruling of the Court below, and I proceed to consider them in the order in which they stand upon the record.

1. It is said that the first count of the plaintiff's narr. is defective, and as the assessment of damages was entire, and the judgment general, without distinguishing the good counts from that which is bad, it is argued that the judgment cannot be sustained. The only defect perceived in this count is in charging that the promise was made to the plaintiff by the plaintiff — a clerical error, doubtless, in writing plaintiff for defendant, but wholly unimportant, for the context, sufficiently corrects it; and beside, it falls within the excellent rule suggested in Carson v. Hunt, 2 Harris 513, that whenever the defect in the declaration is such as would be amended in the Court before whom the trial is had, it is cured by the verdict. Beyond controversy, this very immaterial defect would have been amendable on motion, and we now consider that as done which might have been done.

2. The plaintiff was permitted to ask several witnesses whether the conduct of the parties evinced a mutual attachment to each other, or only the relation of ordinary acquaintances and friends. It is insisted that this was competent, since it is impossible for any witness to describe all the observable acts, expressions, words, and looks which make up the evidence of mutual affection. Counsel think no witness can convey to a jury how a person looked, or exactly what he or she said who was in love.

To the general rule that witnesses are to deliver facts, and not inferences or conclusions, there are many exceptions, as in questions of handwriting — of identity of persons — of science, art skill, or trade; but what degree of attachment or affection is indicated by the manners and conduct of a lady's suitor is not a question which falls within any of the exceptions. On such a subject the jury is as competent to weigh the facts and deduce the appropriate conclusions as the witness. And if the witness have no facts to describe to a jury, what are his conclusions and impressions but the baseless visions of his imagination? The question here was, had Leckey promised to marry the plaintiff? There was no direct evidence of the promise, but it was competent for her to prove such attentions on his part as ordinarily characterize a matrimonial engagement, and as might lead a jury to presume a promise. The law has an open ear for the complaints of deserted innocence, and the tribunals of the law are quite ready enough to give full effect to such circumstantial evidence as is usually submitted in actions of this sort, to prove the promise of the recreant lover; but if he is to be charged with infidelity to his vows, not upon proved circumstances, but upon the surmises, suspicions, opinions, and impressions of witnesses, we shall be in great danger of producing more evils than we remedy, and of sacrificing the legal rights of a man to redress the imagined wrongs of a woman. The only case in the books which gives any countenance to evidence such as is complained of here, is the case of McKee v. Nelson, 4 Cowen 355; but let it be observed that in that case similar evidence had been given by two witnesses without objection from the defendant, and that when afterwards other witnesses were asked the same question, then for the first time objected to, it was not for the purpose of establishing the promise of the defendant, but the assent of the plaintiff. In overruling the objection, the judge observed that whether the plaintiff's affection was sincere or not, could only be gathered from an attentive observation of her conduct, and was not susceptible of any other proof than what had been already given and was then offered for the plaintiff. This decision was sustained by the Supreme Court of New York, as founded in good sense and the nature of things; but it is apparent that it is not an authority in point, because in our case the objection was taken when the evidence was first offered, and it was given, not to prove the assent of the plaintiff to the defendant's promise, but to make out the promise itself. The plaintiff here was permitted to prove her assent by her express declarations to her sister; and in general I doubt the necessity for resorting to so equivocal a medium of proof as the opinions of witnesses even to show the plaintiff's assent; for where the evidence establishes such marked attentions on the part of the defendant as raise a presumption of a promise of marriage on his part, the general...