Salchert v. Reinig

• Decision Date: 18 February 1908
• Citation: 115 N.W. 132,135 Wis. 194
• Court: Wisconsin Supreme Court
• Parties: SALCHERT v. REINIG.

135 Wis. 194

115 N.W. 132

SALCHERT

v.REINIG.^a1

Supreme Court of Wisconsin.

Feb. 18, 1908.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Mary Salchert against William C. Reinig. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Action for breach of promise to marry, alleged to have been made about the 1st of August, 1902, aggravated by seduction accomplished in reliance upon said promise, and followed by nearly three years of frequent illicit connection between the parties. The defendant denied any promise of marriage, but admitted the establishment and continuance of such illicit relations upon the basis of a cash payment on each occasion thereof. The answer pleaded was a simple general denial. The jury, by special verdict, found that about the 1st of August defendant did offer or promise to marry the plaintiff, and that she accepted the offer; that said offer or promise was not conditioned upon sexual intercourse or upon her becoming pregnant by him; that plaintiff held herself ready and willing to marry the defendant until his wedding with another woman in April, 1906; that the time between the making of such promise and said April, 1906, was a reasonable time for the engagement to continue without marriage taking place; assessed the damages for breach of promise, regardless of any question of seduction, at $10,000; and by the eighth answer found that the defendant seduced the plaintiff “under such promise”; and by the ninth answer that the damages by reason of the seduction was $5,000. Motions for nonsuit and for direction of verdict in favor of defendant were duly made and overruled, with exception, and, after verdict, motion was made to change the answers of the several questions and to render judgment for the defendant, and if that be denied that the verdict be set aside, and a new trial granted; all of which motions were denied, over exception, and judgment rendered for both sums of damages included in the special verdict, to wit, $15,000, from which judgment the defendant appeals.P. H. Martin (Maurice McKenna and Doyle & Hardgrove, of counsel), for appellant.

J. E. O'Brien (Duffy & McCrory, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

Appellant's most urgent contention is that the trial court erred in refusing to direct verdict for defendant, or to insert answers in the special verdict negativing the promise of marriage, and that he also erred in not setting aside that verdict as opposed by great weight and preponderance of evidence. The action of a trial court in the second respect is an exercise of discretion with which the appellate court will not interfere. Although convinced that some credible evidence supports the verdict, if the trial judge is persuaded that such evidence is relatively so weak or unconvincing, when compared with the adverse evidence, that there is danger that the verdict will work injustice, he is vested with a broad discretion to protect against such peril by granting the parties a new trial. Bannon v. Ins. Co., 115 Wis. 250, 91 N. W. 666;Peat v. Ry. Co., 128 Wis. 86, 107 N. W. 355. But when this stage has been passed, the question whether the court should direct a verdict, or whether this court on appeal may in effect do so, depends merely upon whether there is any credible evidence which, in the most favorable view, and granting all reasonable inferences and construction in favor of the conclusion of the jury, tends to support the verdict. To declare sworn testimony of a fact incredible we must be convinced that it is so in conflict with the uniform course of nature or with fully established physical facts that no reasonably intelligent man could give it credence. Beyer v. Ins. Co., 112 Wis. 138, 88 N. W. 57;Hirte v. Eastern Wis. Ry. & L. Co., 127 Wis. 230, 106 N. W. 1068;Peat v. Ry. Co., 128 Wis. 86, 107 N. W. 355. In this case the plaintiff testified positively to the fact of a promise of marriage, and of course this suffices of itself to support the verdict on that subject, unless rendered incredible by other evidence in the sense above stated. No corroboration is required. Giese v. Schultz, 65 Wis. 487, 493, 27 N. W. 353. It is opposed in the first instance by the categorical denial of the defendant, but this simply presents a case of two conflicting witnesses, one or the other of whom may be credited by a reasonable person according to their appearance, interest, fairness, and manner of testifying. While the plaintiff is involved in some measure of contradiction as to the details of the interview in which the promise was made, so also is the defendant's testimony permeated by contradictions, uncertainty, and evasion. Throughout his examination, under section 4096, Stat. 1898, through many consecutive answers relating to the most material events he contented himself with denying memory or knowledge, and later testified thereto fully and in detail, thus placing his testimony at one time in direct contradiction therewith at another. Again, there is the asserted improbability that a man in his rank of life would engage himself in marriage to the plaintiff, and there is conduct on her part considered by the defendant's attorney as variant from that which usually accompanies the relations between engaged persons. But we can see nothing in this more than mere improbability, and not enough to make it impossible for an ordinarily intelligent person to believe in the existence of the promise of marriage notwithstanding such conduct. The unsavory character of the evidence descriptive of the relations of the parties must make it suffice to state our conclusion that after careful examination thereof we cannot deem any of the facts disclosed as so inconsistent with plaintiff's testimony as to this promise as to render it so incredible that it might not by reasonable men be believed, and so that it obviously furnishes support for that part of the verdict.

We can discover nothing in the opinion of the trial court which indicates that he failed to appreciate his duty upon the motion for a new trial when that opinion is considered in its entirety, although there are some remarks therein which, if disassociated from the context, might indicate that he thought he was bound to overrule that motion if there was any evidence supporting the verdict.

Error is assigned with some confidence upon the contention that the agreement between plaintiff and her attorney was champertous. She had apparently answered on her examination under section 4096 that she had agreed to give him a certain proportion of the recovery, and expected him to pay the court costs. The latter answer she attempted to correct before signing her deposition, and made explanation more or less satisfactory of misunderstanding such statement. Testimony was given by the attorney and others as to the exact terms of that agreement which it was claimed was later reduced to writing, and that it required plaintiff to pay costs and expenses; also that she had done so. The whole evidence was before the court. His decision that the contract actually made was not champertous was fully borne out by at least some of the evidence, which was, at most, thrown in conflict by plaintiff's answer above stated. We cannot think that there was any clear preponderance against the decision of the trial court on what were the terms of that agreement. Lyttle v. Goldberg, 131 Wis. 613, 111 N. W. 718.

Several of the assignments of error present comparatively trivial grounds of complaint in which we can discover no error prejudicial to the appellant. These include the refusal of plaintiff to sign her deposition at first; but she did sign it before trial, and defendant made full use of it. Another, is the exclusion of a question to the plaintiff on cross-examination whether she had promised to give one Chesebro a portion of her damages. While it might not have been error to admit this in the broad field of cross-examination, we discover no error in excluding it nor any prejudice to the defendant. She did not call Chesebro as a witness, and when called by the defendant he gave no evidence tending to support the plaintiff's case. In connection with the foregoing there is assigned error upon the refusal to permit third persons to testify to certain statements of Chesebro to them to the same effect. This was properly enough excluded on the grounds already stated, but also for the reason that it was hearsay, calling for unsworn statements of one not a party to the action. It, of course, was not admissible as impeachment of Chesebro, for he had not been called as a witness by the plaintiff. Admission of the will of defendant's father, under which he was beneficiary, was certainly proper as tending prima facie to show the amount of his wealth. The inventory accompanying it was admissible upon the same ground, and more especially as defendant's own admission, it bearing his signature. These documents tended to show him a beneficiary to the extent of one-third of an estate inventoried at some $200,000, and while, of course, not conclusive were prima facie evidence. Had there been debts or any other circumstance to contradict such conclusion, they were easy of proof by the defendant. Evidence of the plaintiff's general reputation for chastity in the community was admitted over objection, but the trial judge by his charge confined the effect or relevancy of any such fact to the question of damages by reason of seduction; hence, as we shall see, it can have no bearing upon the conclusion reached in the case.

A large number of requests to instruct are called to our attention by the appellant's brief, with the claim that their refusal is error. Many of them are directions to the jury to consider certain classes or items of evidence. The omission to do this...