Nolan v. Glynn

• Court: Iowa Supreme Court
• Writing for the Court: LADD
• Citation: Nolan v. Glynn, 163 Iowa 146, 142 N.W. 1029 (Iowa 1913)
• Decision Date: 25 September 1913
• Parties: NOLAN v. GLYNN.

163 Iowa 146

142 N.W. 1029

NOLAN

v.GLYNN.

Supreme Court of Iowa.

Sept. 25, 1913.

Appeal from District Court, Warren County; Lorin N. Hays, Judge.

Action for damages because of breach of promise to marry and the seduction of plaintiff resulted in judgment against defendant, from which he appeals. Reversed.Berry & Watson, of Indianola, and John A. Guiher, of Winterset, for appellant.

C. A. Robbins and A. W. and Phil. R. Wilkinson, all of Winterset, and A. V. Proudfoot, of Indianola, for appellee.

LADD, J.

The defendant began paying attentions to plaintiff in 1901, and continued so to do until some time in 1909. The petition alleged that they became engaged to marry in October, 1904; that later he seduced her, and when she became pregnant advised and caused an abortion to be committed upon her; and that, after repeatedly postponing marriage, finally he declined to carry out his promise. The answer was a general denial. The testimony of plaintiff tended to sustain these allegations of the petition, and is somewhat corroborated by the letters of defendant, while the latter, though admitting having visited plaintiff during the period stated, denied ever having proposed or promised marriage, and testified that he had never had intercourse with her or known of her pregnancy or of the commission of an abortion. It is evident from this statement that the evidence was such as to carry these issues to the jury, and only the questions of law raised by the record need be reviewed.

[1] I. On cross-examination plaintiff testified that she was acquainted with Ella Doheny, who was employed in the bank at Cumming of which defendant was cashier, also with Simon Casady, of Des Moines, and J. N. Casady, of Norwalk, who were interested in the bank as president and vice president, and was then asked, “Is it, or is it not, true that during the year 1911 you requested Simon Casady and J. N. Casady, or either of them, to discharge Mr. Glynn from the bank?” An objection as immaterial, irrelevant, incompetent, and not cross-examination was sustained. “Q. Is it true that you wrote a letter to either one of those gentlemen, Casady, and asking them in regard to the Doheny girl working in that bank, and in regard to Mr. Glynn working in that bank?” A like objection was sustained. Thereupon counsel for defendant stated that it was proposed to show that: “Plaintiff sought an interview with Simon Casady and J. N. Casady, they being officers of the bank in which defendant works, and at her solicitation at that time an interview was granted, and that the object of that interview was the discussion of matters between her and Mr. Glynn connected with this case, and that she in that interview some time in the month of June, I think the 22d of June, 1911, stated to the two Casadys that she thought the trouble with Glynn was the--or words to that effect--was that he was under the influence of this Ella Doheny; that she would be satisfied if they would discharge the Doheny girl (this was the purpose of our motion) from the employment of the bank, not file her petition, and not prosecute her case against Glynn; that afterwards she wrote a letter we have, in which she said that she was mistaken, and the relations existing between the Doheny girl and the defendant were not what she thought they had been, and now, if they would discharge Glynn, she would be satisfied, and her petition would not be filed, and this case would not be prosecuted; that subsequently on her own motion she sought another interview, and said that she was mistaken again, and that if they would agree to discharge the Doheny girl (and this conversation occurred along after the petition was filed) that she would be satisfied and not prosecute the case, or would dismiss it, or words to that effect. Now the intention of this testimony is to show the animus of this prosecution, to show her attitude, and to show the matter of good faith as affecting her credibility as a witness in the case. Court: The ruling will have to remain. The objection is sustained.”

We think the inquiries in view of the explanation fairly within the range of proper cross-examination. The evidence sought to be elicited would have tended to show the animus actuating her in the action and have borne more or less directly on her credibility as a witness. As the trial court exercises a large discretion in fixing the limit of cross-examination tending to disclose motive or interest, we might not have been inclined to reverse on this ruling; but, as the matter concerned the relations of the parties to the action, we think the evidence, if offered on another trial, should be received.

[2] II. Plaintiff testified to having first discovered that she was pregnant November 8, 1906, and that she consulted Dr. Sherman near the last of the month, and about two weeks later he gave her medicine, and that he operated on her to cause an abortion April, 1907, which resulted later. The doctor denied all this, and testified that plaintiff never asked him “to perform an abortion on her,” but on objection was not permitted to testify whether as early as August in 1906 she consulted him as to whether she was pregnant, or he examined her to ascertain this. The ruling was correct. By her testimony she had waived the privilege as to any consultation or examination had in December or about that time (Woods v. Incorporated Town of Lisbon, 150 Iowa, 433, 130 N. W. 372), but not as at more remote period, and, though the testimony called for may have been material, he was not at liberty to give it over her objection that the consultation was privileged.

III. The plaintiff testified that in April, 1907, Dr. Sherman gave her a paper of tablets, known in the record as Exhibit W. W., to be dissolved in water to be used as a douche. The doctor denied having given her these in 1907, or to have given her the directions she had testified to, but stated that he gave them or similar ones to her in 1905, and on objection was not permitted to testify for what purpose they were then given, or whether they were to be used following an abortion. Assuming that he would have testified most favorably to defendant, he must have related a transaction which could have had no connection whatever with that of which she had spoken. Undoubtedly in testifying to receiving the tablets in April, 1907, and their purpose, she waived the right to insist on the protection of the statute excluding the physician's testimony concerning the same (Woods v. Incorporated Town of Lisbon, supra), but only as to matters concerning which she spoke. What the doctor may have done two years previous she did not allude to, and as to that his lips were sealed. The rule is said in 4 Wigmore on Evidence, § 2388, to be that: “A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct, though not evincing that intention, places the claimant in such a position with reference to the evidence that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield.”

For this reason, doubtless, the testimony of the doctor denying that he gave her the tablets in 1907, and stating that they were given on another occasion two years previous, was received. What their purpose was then would throw no light on the transaction in 1907, and would tend to open up professional matters on which plaintiff had the right to have him remain silent. In Treanor v. Railway (Com. Pl.) 16 N. Y. Supp. 536, the testimony of the physician related to the precise matters concerning which the complainant had testified, and therefor the implied waiver related thereto and not to an independent transaction. The ruling was correct.

[3][4] IV. A sister of plaintiff was asked, as was also her mother, in substance, “Whether or not it was understood by all members of your family that Mary was to be married to Mr. Glynn?” and over objection as incompetent, irrelevant, and immaterial, “unless they got that understanding from Mr. Glynn, or what Mr. Glynn said to them,” answered in the affirmative. Had this evidence been tendered solely as tending to establish an engagement to Mary, there would be much force in defendant's contention, for, though this may be proven “by unequivocal conduct of the parties, and by a general, yet definite and reciprocal, understanding between them, their friends and relations, and corroborated by their actions, that a marriage was to take place” (Thurston v. Cavenor, 8 Iowa, 155), this must be shown by what was done and said evidencing such understanding, not among friends and relatives, but between the alleged contracting parties and such friends and relatives as assumption in conversation of an engagement or that they were to become husband and wife, or otherwise recognizing the relationship. In measuring the damages to which she might be entitled to recover, the humiliation she endured because of breaking the engagement, and the wounding of her feelings thereby, were important elements, and the fact that the members of the family with whom she constantly associated knew of their relationship could but add to and accentuate the poignancy of her grief and mortification. For this reason, the knowledge of the members of the family may be shown. Reed v. Clark, 47 Cal. 195;Dunlap v. Clark, 25 Ill. App. 573. Evidence that plaintiff had communicated to her family the fact of the engagement also has been received as tending to prove consent to or mutuality of the promise to marry. Thurston v. Cavenor, 8 Iowa, 155;Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385.

But in the eighth instruction the court told the jury that, in determining whether there was an agreement to marry, they might consider, among other things, “how the immediate relatives and friends of their respective families understood their relation toward each other.” We have discovered no...