Ryan v. Oswald
| Decision Date | 18 March 1938 |
| Docket Number | 30195 |
| Citation | 278 N.W. 508,134 Neb. 265 |
| Parties | DORIS RYAN, APPELLEE, v. PAUL OSWALD, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hall county: ERNEST G. KROGER JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
Syllabus by the Court.
1. Section 20-701, Comp.St.1929, authorizes a plaintiff to unite a cause of action growing out of a breach of contract of marriage and another in damages for seduction where both causes arise out of the same transaction.
2. " Where disease or physical disability rendering it unsafe or improper to marry has developed in either party to the contract, without intervening fault on the part of the other, subsequent to the making of the contract and before its consummation by marriage, such other party will be required to wait a reasonable time for a cure to be effected and if such disease or disability proves to be of a permanent character, may refuse to carry out the contract." Fellers v. Howe, 106 Neb. 495, 184 N.W. 122.
3. " Specifically, seduction is the act of inducing a woman to consent to unlawful sexual intercourse, by enticements which overcome her scruples." 57 C.J. 9.
4. " Where the only reversible error appearing in the record is that the amount of the recovery is excessive, but not as the result of passion and prejudice of the jury, the court will affirm the judgment upon the excess being remitted." Fellers v. Howe, 106 Neb. 495, 184 N.W. 122.
Appeal from District Court, Hall County; Kroger, Judge.
Affirmed on condition.
" Seduction" is the act of inducing a woman to consent to unlawful sexual intercourse by enticements which overcome her scruples.
Craft, Edgerton & Fraizer and H. G. Wellensiek, for appellant.
Prince & Prince, contra.
Defendant appeals from a judgment for $ 10,000 against him.
The second amended petition, upon which the case was tried, sets up two causes of action for damages against defendant; one based on breach of promise of marriage and the other based on seduction under a promise of marriage.
The first cause of action alleged that both parties were over 18 years of age and had been keeping company for several months before May 23, 1933; that on said date defendant asked plaintiff to marry him and she accepted; that he promised to marry her and they were engaged to marry from the date named until about April 27, 1936; that from May 23, 1933, to March 18, 1934, defendant continually sought to seduce plaintiff under his promise of marriage and did finally carnally know her on or about March 18, 1934; that she was a chaste woman and had never had intercourse prior thereto with any man and that their relationship continued until about April 27, 1936, about which time defendant refused and has since continued to refuse to marry plaintiff and has breached his promise of marriage, to the damage and injury of the reputation, social standing and ability of plaintiff to support herself, for which damages she prays judgment.
The second cause of action is based upon substantially the same facts and prays damages for the seduction.
Defendant moved to require plaintiff to elect upon which count she would go to trial; one being said to be upon contract and the other for a tort. The overruling of this motion is assigned as error. Section 20-701, Comp. St. 1929, authorizes a plaintiff to unite a cause of action growing out of a breach of contract of marriage and another in damages for seduction where both causes arise out of the same transaction. 1 C. J. 1086; 1 C. J. S. 1255.
Defendant pleaded that the parties became engaged in October, 1933, but that no date for their marriage had ever been set. He alleged that on February 16, 1936, he noted serious mental delusions of plaintiff, that on February 22, 1936, she became mentally unbalanced and demented, and that this insanity grew constantly worse so that on February 24 a nurse was called to care for her, and on March 7, 1936, she was taken to Omaha and placed in a hospital under the care of a specialist, where she remained until April 24, 1936, when defendant brought her home; plaintiff's parents being without funds, defendant paid the doctors, nurses and hospital bills; that her parents filed an insanity information against her, she was adjudged insane and was taken to a sanitarium at Lincoln, where she remained incompetent and insane until about September 9, 1936; that until plaintiff became insane defendant had no thought but that they would marry, that the only time she suggested that they marry he told her he was not financially able to support her and she acquiesced and agreed with him, and that she frequently, when in her right mind, stated that she wanted to teach until 1938, before getting married; that defendant did not seduce plaintiff and never had sexual intercourse with her; that if her reputation for chastity has been impaired it has been brought about by her own statements or through the statements of her parents and relations and never by any statements of defendant; that after plaintiff's return from the hospital at Omaha, on April 24, 1936, up to May 10, 1936, defendant called on plaintiff seven times and on most of these occasions her mind was a total blank; defendant saw her on April 26 and April 28, 1936, and on neither occasion was marriage discussed between them; that about May 10, 1936, defendant stopped calling on plaintiff and did so because of the mental incompetency of plaintiff and because on May 6, 1936, her sister, having similar delusions, was adjudged insane and was committed to the state hospital at Ingleside; that plaintiff never made any demand on defendant to marry her, that he never refused such a demand, that at all times from February 16, 1936, until May 10, 1936, when defendant stopped calling on her, she was insane and incompetent to enter into a marriage relation, and that by reason thereof and the insanity in her family defendant is released from his previous engagement to plaintiff. Defendant denies every allegation of the first and second causes of action not admitted by the answer.
The reply of plaintiff denies all allegations of new matter in the answer; alleges that her mental breakdown of February 22, 1936, was caused solely and only by worry over the fact that she believed she was pregnant by defendant and over the fact that defendant would not marry her, that she would lose her position as a teacher, that her reputation would be destroyed, and that under such circumstances defendant would not carry out his agreement to marry her; that the same things caused such a shock to her sister Beulah as to make her suffer temporarily a similar mental breakdown, but that the sister was confined only a few weeks and then was discharged as permanently cured; and that plaintiff is completely cured and has been perfectly normal since September 9, 1936.
Plaintiff and defendant were a country girl and boy, more than 18 years of age when they became engaged and about 21 at the time of trial. She was a school-teacher and he lived with his parents and helped to do the work on his father's farm. He admits the engagement and promise to marry and seeks to justify the breaking off between them because of her mental disturbance and his claim that there was insanity in her family. His testimony denies that he ever had sexual intercourse with her. She testified that for nearly a year after they became engaged he pleaded for sexual intercourse and that she finally yielded and they pursued that relation from some time in 1934 to January or February, 1936. She thought she was pregnant because she had overrun her period for about three weeks. On February 21, 1936, her father sent for him and a family conference was held at her home. While he was not directly accused, he testified that plaintiff said: " He testified that he did not answer the father. The evidence shows that on that night he took her to the house of his cousin, who was married to her sister. The next morning the four started out with the plan of being married at Grand Island or Hastings. Defendant stopped at his parents' home to change his clothes and then suggested that they go to Grand Island to see a doctor. The two girls went in to see a doctor at the hospital. They came out and reported that the doctor could not tell whether she was pregnant or not. They all went home and that night plaintiff and defendant started to Grand Island to get some medicine that the doctor had suggested, but on the way plaintiff refused to get the medicine. She testified that he said: "He couldn't get married now, because he didn't have any money."
Plaintiff and defendant both agree that she suffered a mental breakdown on February 22, 1936. Defendant took her to a hospital in Omaha March 7, 1936, where she remained several weeks. Defendant paid the bills and was attentive in his calls and correspondence. Later she was taken to Green Gables in Lincoln for treatment and evidently was cured of her mental troubles which she claims were brought about by worry over the belief that she was pregnant, and aggravated by his refusal on February 22, 1936, to marry her.
While she was in the Omaha hospital, defendant wrote her a letter dated March 8, 1936, in which he said: ...
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