Stratton v. Dole

• Decision Date: 19 June 1895
• Parties: STRATTON v. DOLE.
• Court: Nebraska Supreme Court

45 Neb. 472

63 N.W. 875

STRATTON

v.DOLE.

Supreme Court of Nebraska.

June 19, 1895.

Syllabus by the Court.

1. An application for continuance is addressed to the discretion of the trial court, and the ruling thereon will not be disturbed in the absence of a clear abuse of discretion.

2. Provisions for the taking of testimony in one state for use in the courts of another, and the enforced attendance of witnesses for that purpose, are founded on comity, and are, in the absence of express statutory provision to the contrary, extrajudicial as to the courts of the state where such evidence is sought.

3. A continuance will not be granted to enable a party, by proceedings for contempt in the courts of Wisconsin, to compel a contumacious witness to testify by deposition, there being no presumption that by refusing to answer he is guilty of contempt of any court of that state.

4. In actions for breach of promise to marry, evidence of the defendant's reputation for wealth is admissible, not for the purpose of proving his ability to pay damages, but as tending to show the condition in life which the plaintiff would have secured by a consummation of the marriage contract, although it is not permissible to the plaintiff to particularize the defendant's property.

5. The defendant's mother, at his request, procured the plaintiff to receive him as a suitor, and was otherwise actively engaged in promoting the marriage agreement. Held, that the communications by the former to the plaintiff while thus engaged touching the defendant's property, made as an inducement to the marriage contract, are admissible in evidence in an action against the latter for the breach thereof.

6. Error not probably conducing to a wrong final decision is no ground for the reversal of a judgment.

7. Held permissible for the defendant to prove specific acts of incontinence on the part of the plaintiff. If guilty of fornication, that fact would be a defense to her action, since personal purity is one of the implied conditions of her agreement. If her actions have been wantonly indelicate and inconsistent with the conduct of a pure-minded woman, that fact is admissible, at least in mitigation of damage.

8. A judgment will not be reversed for the giving of an erroneous instruction where the verdict is clearly right, and the only one which could have been rendered upon the particular issue involved.

9. Evidence set out in the opinion held admissible for the purpose of impeachment, the necessary foundation therefor having been laid.

10. Although the practice of reading to the jury from reported decisions should not be encouraged, the subject is one within the discretion of the trial court, and presents no grounds for interference by this court, in the absence of an abuse of discretion.

11. Arguments of counsel based upon facts not in evidence will not justify the reversal of a judgment when the objectionable remarks were evidently made in reply to the argument of the complaining party, who was guilty of the first offense in that regard.

12. Evidence examined, and held sufficient to sustain the verdict and judgment of the district court.

Error to district court, Lancaster county; Tuttle, Judge.

Action by Florence E. Dole against Thomas A. Stratton. There was a judgment for plaintiff, and defendant brings error. Affirmed.

E. E. Brown and G. M. Lambertson, for plaintiff in error.

W. A. Starr, J. B. Strode, and R. D. Stearns, for defendant in error.

POST, J.

This was an action by the defendant in error, in the district court of Lancaster county, for the breach by the plaintiff in error (defendant below) of an alleged promise of marriage. It is also alleged as a part of the cause of action in the court below that the defendant therein, under promise of marriage, seduced and debauched the plaintiff, to her damage, etc. The answer, while denying the alleged seduction, admits a promise of marriage conditioned that the plaintiff should prove upon inquiry to be a woman of good character and reputation. It is further alleged that the defendant, subsequent to said promise, ascertained that the plaintiff was not a woman of good character and reputation, but that she was, on the contrary, immoral and unchaste, by reason of which he declined to consummate the agreement above mentioned. There was a trial in the district court, resulting in a verdict and judgment for the plaintiff therein, from which the defendant prosecutes proceedings by petition in error to this court.

The first of the errors assigned is a denial of a continuance, on the motion of the defendant, in order to enable him to secure the testimony of one Rowley, an alleged material witness. By reference to the defendant's affidavit, we observe that he claims to have learned from the plaintiff's own confession on the 31st day of December, 1890, while the agreement was still in force, that she had been criminally intimate with certain persons, including the witness named, and which is the ground upon which he relies for a justification of his refusal. The action, as shown by the record, was commenced in the district court April 27, 1891, and a trial had therein in the month of April, 1892, resulting in a verdict which was, on the defendant's motion, set aside and a new trial ordered. The motion for continuance above mentioned was made at the September, 1892, term, to wit, September 20th, and the order overruling it bears date of December 9th, being the 68th day of said term. On the 23d day of August of that year, the deposition of said Rowley was taken before a notary public in the city of Racine, in the state of Wisconsin. During said examination, the witness was asked whether there had at any time existed criminal relations between himself and the plaintiff, which question he refused to answer, assigning as a reason therefor that his relations with the plaintiff were his “own personal business.” It was urged in the district court, and which contention is here renewed, that if sufficient time had been allowed for that purpose the defendant could, by means of proceedings for contempt in the courts of Wisconsin, have compelled the witness to answer, and that his answers would have established the defense alleged. That an application for continuance is addressed to the discretion of the trial court, and that the ruling thereon will not be disturbed unless such discretion is shown to have been abused, are propositions so firmly established by the decisions of this court as to render a reference to them wholly unnecessary. Rowley it should be noted, resided in this state continuously from the date of the alleged confession of the plaintiff in December, 1890, until the month of September, 1891; yet no attempt was made to secure his testimony until the month of August, 1892. Nor had any steps been taken at the time of the overruling of the motion to compel him to answer the questions propounded. The district court evidently regarded the showing of diligence as insufficient to entitle the defendant to a further continuance, and such conclusion cannot be regarded as an abuse of discretion calling for interference by this court.

But the district court was apparently influenced by another consideration, and which is of itself a sufficient justification of the ruling assigned, viz. the improbability of securing the evidence sought by resort to proceedings for contempt in the courts of Wisconsin. The law which authorizes the taking of testimony in one state for use in the courts of another state, and which requires the attendance of witnesses for that purpose, is founded upon comity, and is, as remarked by Lyon, J., in State v. Lonsdale, 48 Wis. 365, 4 N. W. 390, extrajudicial as to the courts of the state where such evidence is sought. It follows that the witness named, by refusing to answer in this case, is, in the absence of a special statute of Wisconsin, guilty of no contempt of any court of that state. This conclusion is in harmony with the recognized rule as well as the decisions of this court. See Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995, and cases cited.

The plaintiff was permitted, while a witness in her own behalf, to repeat an alleged statement of the defendant's mother relating to his (defendant's) financial standing, and which is assigned as error. In actions of this character, evidence of the defendant's general reputation for wealth is admissible, not for the purpose of proving his ability to pay damages, but as tending to show the condition in life which the plaintiff would have secured by a consummation of the marriage contract. Kerfoot v. Marsden, 2 Fost. & F. 160; Kniffen v. McConnell, 30 N. Y. 285;Holloway v. Griffith, 32 Iowa, 409;Bennett v. Beam, 42 Mich. 346, 4 N. W. 8;Olson v. Solverson, 71 Wis. 667, 38 N. W. 329;Johnson v. Travis, 33 Minn. 231, 22 N. W. 624;Hunter v. Hatfield, 68 Ind. 422.

But it is not as a rule permissible to particularize the defendant's property. As said in Kerfoot v. Marsden, supra, “You may ask in a general way as to the defendant's wealth, but cannot go into particular items as to his property.” See also Kniffen v. McConnell, supra, and Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308. Our first impression was that the admission of the declarations mentioned was error requiring a reversal of the judgment. But a second reading of the record has convinced us that this is not a case for application of the general rule, in view of Mrs. Stratton's relation to her son (the defendant), and the conspicuous part taken by her in promoting the marriage contract. The evidence bearing upon this aspect of the case is free from conflict, and may be summarized as follows: About the 14th day of October, 1890, the plaintiff, then residing with her parents in Red Willow county, and engaged in teaching school in an adjoining district, received a letter from Mrs. Stratton inquiring if she was married or engaged, and soliciting an answer, saying that she (plaintiff) might...