Thorn v. Tetrick

• Decision Date: 27 March 1923
• Docket Number: (No. 4708.)
• Citation: 116 S.E. 762
• Parties: THORN . v. TETRICK.
• Court: West Virginia Supreme Court

116 S.E. 762

THORN .

v.TETRICK.

(No. 4708.)

Supreme Court of Appeals of West Virginia,

March 27, 1923.

(Syllabus by the Court.)

Error to Circuit Court, Marion County.

Action by Lorine Thorn against Paul Tetrick. Judgment for plaintiff, and defendant brings error. Affirmed.

H. H. Rose and Neely & Lively, all of Fairmont, for plaintiff in error.

L. C. Musgrave and Shaw & Shaw, all of Fairmont, for defendant in error.

MILLER, P. In an action for damages for the alleged breach by defendant of hispromise to marry her and for seducing her under such promise, plaintiff obtained a verdict and judgment against him for $8,000.00.

When the case was called for trial January 20, 1922, the defendant moved the court to continue the case to a future day of the same term, on two grounds: First, the sickness of one of his attorneys, who on that occasion was unable to be present; second, the absence of a witness, an aunt of defendant. Plaintiff resisted this motion. On the first ground plaintiff relied on the fact that defendant had two other able attorneys of record, and who were there present and who are shown to have afterwards conducted the defense. Of course the absence of one of the attorneys, even if he had been the leading one, would not have constituted good ground for a continuance. Cicerello v. Ches. & Ohio Ry. Co., 65 W. Va. 439, 64 S. B. 621.

And the absence of a witness, even if shown to be a material one, will not be good cause for a continuance, without a showing of due diligence to procure his attendance. In this case, the absent witness resided in the county but was then absent in another state, had not been summoned, and no effort had been made to secure her deposition. Defendant, according to his affidavit, relied solely on her alleged promise to return and give evidence on the trial when notified. His affidavit shows that his only effort to get the witness was a telegram sent her the day before the case was called for trial, to which message she replied: "Can't possibly come, sick." He says in his affidavit that he expected to be able to prove by this witness that plaintiff, after she became pregnant, In a conversation admitted that there never had been any engagement or agreement between her and him, and that he could not prove the same by any other witness. The fact of the contract or promise of marriage, not the supposed conversation, was the material thing. Such testimony, if given, would have been of the same character and cumulative of.the other testimony of defendant himself. Due diligence to obtain the presence of this witness or her testimony was not shown, and her absence constituted no good ground for a continuance. Ohio Valley Bank v. Berry, 85 W. Va. 95, 100 S. B. 875; Cicerello v. C. & O. Ry. Co., supra; State v. Duffy, 75 W. Va. 299, 83 S. E. 990.

But it is said that the defendant did not move a continuance, but only a postponement to a later day in the term, and that the rule as to diligence in such cases is different. The authorities make no distinction. Some cases do hold that sometimes the courts will more readily exercise their discretion in favor of an application to postpone than when a continuance is asked for. 13 C. J. 127.

On the trial defendant took a bill of exceptions to the ruling of the court refusing on his motion to strike out "all of the plaintiff's evidence relative to the alleged attempt of the defendant to have an abortion performed on plaintiff, " setting out in said bill of exceptions in full the particular evidence which counsel regarded as relating to the subject. None of the evidence recited in this bill of exceptions relates to an attempted abortion, and very little of it bears on the subject of abortion at all. The defendant is shown to have suggested it and sought out a nurse, Miss Clayton, and then suggested it to plaintiff; and then both plaintiff and defendant went together to see Miss Clayton, who advised both against this course; and plaintiff says she did not consent, and that as suggested by Miss Clayton, they both agreed to get married and settle the matter in that way, and afterwards, on defendant's promise to support her while there, she went with defendant's aunt to Pittsburg to remain until the child was born, and then return and they would be married. But the money he gave her running out, and he refusing to supply her any more, she returned home. Practically all of the evidence contained in the bill of exceptions relates to defendant's renewed promise of marriage, his threats to kill her on one occasion, and his apparent purpose to kill himself by poison, and her assisting him to recover from the effect of taking the poison. Little, if any, of this evidence could be excluded on the theory that it tended to prove an attempt at abortion, and it was so related to pertinent evidence bearing on the contract of marriage and the promises of defendant relating thereto that counsel have not pointed out particularly what part should be excluded. Their exception goes generally to the whole of the evidence recited. The rule is that if in a deed or other document there is any evidence relative and competent on the issue to be tried, a general objection will not be availing; the objection must go to the specific part not admissible, or its admission will not be regarded as error in the appellate court. Schaubuch v. Dillemuth, 108 Va. 86, 60 S. E. 745, 15 Ann. Cas. 825; N. & W. Ry. Co. v. Sutherland, 105 Va. 545, 54 S. E. 645; Hubbard v. Equitable Life Assur. Sot, 81 W. Va. 663, 673, 95 S. E. 811, 4 A. L. R. 886, and cases cited, among them State v. Calhoun, 67 W. Va. 666, 69 S. B. 1098, which is particularly applicable to the bill of exceptions here involved.-The evidence sought to have excluded, moreover, relates also to the seduction and abandonment of plaintiff by defendant. Such evidence is competent and admissible in aggravation of damages according to one of the cases cited by defendant's counsel. Giese v. Schultz, 53 Wis. 462, 10 N. W. 598. In the other cases cited abortion had actually been accomplished.

Reversal is also sought on the ground that the court refused defendant's instruction No. 5, the only one of the six requestedwhich was refused. It was rightly refused, among others for the reasons just assigned for overruling defendant's motion to exclude the evidence contained in his bill of exceptions No. 4. If given, it would have told the jury—

"that in their deliberations as to their verdict in this case, they must exclude from their consideration all evidence showing or tending to show, that the defendant attempted to have an abortion performed on the plaintiff."

This of course must have been intended to exclude all the evidence covered by defendant's bill of exceptions No. 4. As pointed out, there was no evidence of an attempt by defendant to commit an abortion, nor that an abortion was committed. As far as the evidence on that subject went, it amounted to nothing more than a suggestion or request to plaintiff to suffer an abortion, and not being accomplished the plaintiff...