Osmun v. Winters

• Decision Date: 09 November 1896
• Citation: 46 P. 780,30 Or. 177
• Parties: OSMUN v. WINTERS. [1]
• Court: Oregon Supreme Court

46 P. 780

30 Or. 177

OSMUN v. WINTERS. ^[1]

Supreme Court of Oregon

November 9, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by May Osmun against H.D. Winters for a breach of promise of marriage. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

For former report, see 35 P. 250.

E.B. Watson, for appellant.

A.F Sears, Jr., and A.F. Flegel, for respondent

WOLVERTON J.

Error is predicated of the action of the court below in overruling defendant's motion, based upon his affidavit, for leave to file an amended answer, and also in overruling a subsequent motion to strike out certain portions of the original answer. The points of divergence between the original and the proposed amended answer arise in the further and separate defenses interposed. The answer sought to be filed contains a separate defense in substance the same as the original, except that the allegations of plaintiff's lascivious cohabitation with one Deville Dodge and one W.E Duffer are eliminated, and a further separate defense alleging the prior marriage of the plaintiff with one Fred Osmun, and a want of knowledge or information sufficient to form a belief as to whether said marriage had been legally dissolved. The cause had been once tried, and the motion was called up the day before the time set for a second hearing; and the amendment having tendered a new issue which would require additional evidence to support or overcome, we think it was within the sound discretion of the court below whether or not to allow the motion. Courts are usually liberal in granting leave to amend in furtherance of justice; but, unless it is apparent that justice would be subserved by the amendment, it is not an abuse of discretion to refuse its allowance. The motion to strike out goes simply to the allegations touching plaintiff's conduct with Dodge and Duffer. It appears by the affidavit filed with the first motion that defendant had failed on the former trial to prove these allegations to his satisfaction, and the purpose of the motion to strike out was to get rid, so far as possible, of their damaging effect, as false imputations against the character and chastity of plaintiff. The court below, having heard the testimony at the former trial, in connection with the affidavit and the conduct of the defendant, was able to judge whether said allegations were made in the first instance in good or bad faith; and upon reasons drawn from these observations, we presume, the court's action was based. We cannot say that there has been an abuse of discretion in disallowing this motion, and error in this respect is not well assigned.

In this connection the court instructed the jury that "the defendant in a case of this kind may allege the bad character and bad conduct of the plaintiff, but he does so always at his peril. What I mean by that is that he may assert it and prove it. He may claim that plaintiff had a bad character and bad reputation, and he may prove it, if he can; but, if he fails to prove it, it may be taken as a repetition of the charge of unchastity, and may be considered by the jury in connection with all the rest of the testimony in aggravation of damages. In other words, it is a worse case than if there had been a simple denial of the contract of marriage, and the action had proceeded on the simple allegations and denials." It is claimed that, besides laying down an erroneous rule of law touching the ascertainment of damages in the action, this instruction was especially injurious to the defendant, in view of being held to his former answer. The ruling upon the motion to amend by striking out was but a step in the trial, and, if the court was right in the disallowance of the motion, it was right in instructing the jury touching the effect of the unproved allegations which the motion sought to eliminate. Defendant offered proof of the truth of one of such allegations, but as touching her alleged conduct with Dodge there was no attempt at proof, nor did he claim anything for it in the argument before the jury. This was the condition of the case when it became the duty of the court to instruct the jury, and it was not error to instruct with reference to such condition. Aside from this, the answer contains other allegations imputing immoral conduct to the plaintiff with other men besides Dodge and Duffer, and of her bad character in general. It was therefore pertinent to so instruct the jury generally touching the effect and lack of proof of such allegations as matter of defense.

Was the instruction proper as it respects the aggravation of damages? An instruction of almost identical import was approved by this court in Kelley v. Highfield, 15 Or. 290, 14 P. 744. The ground upon which a false charge of unchastity, assigned as a reason for breaking off the marriage engagement, may be considered in aggravation of damages, is that it shows the animus attending the severing of such relations. No damages should be allowed for the defamatory words, but they should be considered as tending to show that the defendant was actuated by malice, that he broke off the engagement wantonly and insolently, and with a bad and wicked heart, and in a manner well calculated to wound the feelings, injure the reputation, and destroy the future prospects of the affianced. So, if the charge is repeated, by spreading it upon the records in the cause after action begun, without justifying it by proof at the trial, it is a proper element for consideration in aggravation of damages, upon like principle as a repetition of slanderous words in the pleadings in an action for slander, unless sustained, may be considered as proof of the malice which prompted the defendant to give currency to the slander in the first instance. The action for breach of promise of marriage, while founded upon contract, is, in its nature, an action for tort or a wrong done the plaintiff; and, if it becomes manifest that the defendant has been actuated by motives of an evil intent to wantonly and ruthlessly humiliate and injure the plaintiff, a case is made for the assessment of punitive or vindictive damages, which may operate as a punishment in the interest of society as well as for the doing of a willful personal injury to a fellow mortal. Johnson v. Jenkins, 24 N.Y. 252; Thorn v. Knapp, 42 N.Y. 474; Davis v. Slagle, 27 Mo. 600. The court, as we think, very properly told the jury that such an unproven charge of unchastity might be considered in connection with all the rest of the testimony in aggravation of damages.

It is further contended that the instruction is faulty in characterizing such a case as being worse for the defendant than if there had been a simple denial of the contract of marriage. The court simply told the jury what was the fact under the law. The breach, attended with an unfounded charge of unchastity, or an unsuccessful attempt to justify such a charge, is certainly a worse case than if there had been a simple refusal to carry out the marriage contract, unattended with such an imputation, because in itself it affords the very grounds for the aggravation of damages. There is no intimation as to what the damages should be. The two kinds of cases are simply put in comparison as a method of explaining to the jury when and under what circumstances they should, and the conditions under which they should not, visit the defendant with aggravated damages. The jury could not have understood that they should increase the damages at any rate. That was a matter left for them to determine under the testimony. The objection is not well taken.

During the progress of the trial, plaintiff introduced and had read to the jury, over the objections of defendant, certain resolutions which were adopted by Fairview Lodge, No. 560, I.O.G.T., June 26, 1892, of which lodge plaintiff and defendant were members, purporting to extend to them the congratulations of the lodge upon their supposed marriage, a copy of which was directed to be forwarded to them. The ruling of the court in this regard is assigned as error. The reasons assigned for the objection are that the resolutions do not appear to have been prompted by any conduct observed between the parties, but upon information which proved to have been false, and that it was incompetent for the purpose of proving an executory promise of marriage. The evident object of this testimony was to show that a closer intimacy than the ordinary relations of friendship, such as usually exist between members of fraternal societies, obtained between the parties. It is altogether improbable that, unless such intimacy had been previously observed, the lodge would have been so ready to adopt the resolutions, without definite knowledge of the supposed fact upon which they were based. The acts of the parties probably gave coloring to the reported marriage, as it is apparent from the resolutions that they were attentive and active members of the order. So that they have some tendency, remote and inferential though it may be, to show an existing relationship consistent with their engagement, and how their demeanor towards one another was regarded among their friends and associates. In this view, they corroborate in some small measure the proof offered by the plaintiff of the existence of the engagement between them at that time.

After the commencement of the action, the defendant made a statement to which he subscribed, and had it published in the Portland Chronicle, in reply to an article which had previously appeared in the Sunday Mercury. In the course of this statement he makes use of language as follows "They [the Mercury people] prepared to espouse the cause of the notorious woman [the plaintiff], who knows their characters, and...