Poehlmann v. Kertz

• Decision Date: 26 October 1903
• Citation: 68 N.E. 467,204 Ill. 418
• Parties: POEHLMANN v. KERTZ.
• Court: Illinois Supreme Court

204 Ill. 418

68 N.E. 467

POEHLMANN

v.KERTZ.

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Action by Barbara Kertz against John W. Poehlmann. From a judgment of the Appellate Court (105 Ill. App. 249) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Oscar Hebel, for appellant.

McClellan & Spencer, for appellee.

WILKIN, J.

This is an action for breach of promise of marriage, begun by Barbara Kertz, the appellee, against John W. Poehlmann, the appellant, in the superior court of Cook county. In accordance with the verdict of the jury, a judgment was entered for the plaintiff for $2,500. From an affirmance of that judgment in the Appellate Court for the First District, the appellant prosecutes this further appeal.

The appellant was a florist in Chicago, and was a widower, with two small children. In 1894 he became acquainted with Barbara Kertz, who was employed at his brother's home as a domestic. Four years later their acquaintance became more intimate, and they talked of marriage, and she testified that there was a positive agreement to become husband and wife. She then made a visit to her father's home, at Port Washington, Wis., and while there received from appellant several letters, the language of which plainly indicates that a promise of marriage had been made. Appellant visited her there, and presented her with a ring. After his return to Chicago, she heard nothing further from him. Some time thereafter she came to Chicago, and called to ascertain why the correspondence had ceased, and was then informed he had changed his mind; he giving her to understand that their marriage would never take place, but assigning no reason for his conduct.

Upon the hearing, after plaintiff had made her proof, showing the facts substantially as herein set forth, the defendant, while testifying that no marriage contract had even been entered into between himself and the complainant, undertook to justify his refusal to marry her upon the ground that he learned she was a woman of unchaste character, having had sexual intercourse with one Weirich, who appeared as a witness for the defendant, and testified that he had on two or more occasions had illicit intercourse with her. She, in rebuttal, denied the statement made by Weirich, and was then asked by her counsel, ‘Did you ever have sexual intercourse with any man?’ And she answered, ‘Mr. Poehlmann.’ Counsel for defendant objected, and asked that the answer be stricken out on the ground that the declaration contained no allegation of seduction. The court refused to strike out the answer, saying: ‘If you had objected to the question, I would have sustained the objection; but, having waited until the answer came, it is too late.’ Counsel for the defendant then, upon cross-examination, drew out the fact that she had yielded to the defendant only after his promise of marriage.

It is first contended that the court erred in permitting the testimony as to seduction, because the declaration contained no charge of that kind. Having waited too long before objecting to the question, as well as pursuingthe witness with other questions on that subject, counsel for the defendant cannot now, as a matter of practice, complain of the evidence. But aside from this consideration, it was competent, under the pleadings, to prove the seduction, if it occurred in consequence of the promise. It is permitted, in such a case, to be shown in aggravation of the damages. Tubbs v. Van Kleek, 12 Ill. 446;Fidler v. McKinley, 21 Ill. 308. As is said in the case last cited (page 313): ‘In a case of a breach of promise, accompanied with a seduction, the injury is infinitely greater than where there is only a breach of promise. When there is a seduction there is a total loss...