Walker v. Johnson
| Decision Date | 17 February 1893 |
| Docket Number | 789 |
| Citation | 33 N.E. 267,6 Ind.App. 600 |
| Parties | WALKER v. JOHNSON |
| Court | Indiana Appellate Court |
A. L Sharpe and C. E. Sturgis, for appellant.
A. N Martin and E. C. Vaughn, for appellee.
OPINION
The appellee sued the appellant on the alleged breach of a marriage contract. The only answer was the general denial.
There was a trial by jury, and a verdict for $ 800 in favor of appellee. A motion for a new trial was overruled, and final judgment followed. The only error assigned is the overruling of the motion for a new trial.
The first cause of the motion is that the verdict was contrary to, and not supported by, the evidence.
The following are some of the undisputed facts of this case as shown by the evidence:
In the spring of 1888, the defendant commenced waiting upon and courting the plaintiff. She was then a young woman of about the age of seventeen years. She was possessed of no property, and supported herself by doing domestic work in the families of her friends and acquaintances. She was afflicted with epilepsy, or nervous convulsions. This affliction came upon her when she was about fifteen years of age. The defendant was then a man of the age of thirty-nine years. He had been previously married, but was then divorced. He was a farmer, and owned real and personal property of the value of several thousand dollars.
During the years of 1888 and 1889, he called to see her at least once a week. In 1890 his visits became more frequent. He often accompanied her to public entertainments, made her small presents, and on one occasion gave her a gold ring. He admitted on his cross-examination that he sought to win her affections, and that he was courting her with a view to matrimony; that he told her he was much attached to her, and loved her, and that she seemed to reciprocate his affections.
Sometime after the courtship commenced, he learned of her affliction from her uncle. He spoke to her about it. She admitted it, and told him that she thought she could be cured; that the doctor told her she could be, and that she was taking medicine for that purpose. In July, 1889, when the defendant was present, she had an attack of her malady, and fell prostrate in an unconscious condition, and remained unconscious for some time. The defendant assisted her to a bed, helped to care for her for several hours, and then took her to her own home. He continued his devotions to her after this, and often counseled with her about her ailment and what physicians she should employ; he gave her money to purchase medicine. He objected to her doing hard work for fear it would aggravate her affliction. He often talked with her about her condition, and she freely gave him all the information concerning herself, except such as modesty forbade, and referred him to her physician, to learn fully her condition. The defendant did consult a physician about her health, but not the one she directed him to see. In the summer and fall of 1890, the plaintiff had a severe and long protracted illness resulting from a fever. During this time the defendant was very attentive to, and solicitous of, her welfare. In the month of November, when convalescing, she had at least three more convulsions, of which she informed the defendant. He continued his attentions up to within a few days of the 5th of March, 1891, when he was married to another woman. The plaintiff testified, that the defendant proposed marriage to her, and that she accepted the proposal, and the day for the ceremony was fixed for October 15, 1890; that on account of her ill health it was deferred to March 15, 1891. The defendant denied any such promise, and testified that he often told her that she ought not to get married in her condition of health, and that he did not believe she could be cured of her ailment.
When there is some evidence which tends to support the verdict and judgment of the trial court on all material points, this court will not reverse the judgment on the weight of the evidence. Nichols v. Pressler, 3 Ind.App. 324, 29 N.E. 611; Campbell v. State, 3 Ind. 206.
We are of the opinion that the evidence fully sustains the verdict.
Another cause of the motion is that the court erred in giving instructions numbered from one to eight, inclusive, as asked by the plaintiff. This is a joint assignment, and unless all of the instructions are wrong the assignment fails. Williamson v. Brandenberg, 6 Ind.App. 95, 31 N.E. 369; Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385, 23 N.E. 258.
Appellant makes no claim that every one of the instructions is bad. A cursory reading of the instructions will show that such a claim could not be made in good faith. The eighth cause of the motion is that "the court erred in giving instructions Nos. 10 and 11, as asked by the plaintiff, which instructions were handed to the court, and were not seen by the defendant or his counsel until after the argument to the jury had begun." There is nothing in the record of this case which shows that either the plaintiff or defendant requested the court to indicate what instructions it would give as provided by section 534, R. S. 1881. There was a request that the court instruct the jury in writing, and with this the court complied. It had the right to prepare instructions of its own motion, and to give those requested by counsel.
Section 533, R. S. 1881, subd. 4, requires of the parties, when they desire to have special instructions given to the jury, to reduce such instructions to writing, number and sign them, and deliver them to the court before the argument commences. The design of this is to afford the court an opportunity to examine them before giving, modifying, or refusing the same. It is not the purpose of this section to afford opposing counsel an opportunity to examine the instructions asked before the argument commences. If appellant desired to know in advance of the argument what instructions the court proposed to give to the jury, of its own motion, or on the motion of opposing counsel, he should have proceeded under section 534, supra.
The appellant also insists that his motion for a new trial should have been sustained because of error of the court in not requiring the appellee to answer a certain question propounded to her on cross-examination, and in excluding certain other testimony offered by him.
The testimony excluded, with one exception, seems to have all been directed to one purpose in the case, that of showing the physical condition of the plaintiff before and during the time of the courtship. Counsel for the appellee contend, that under the general issue, the appellant has no right to show that the plaintiff was afflicted with any bodily ailment; that if he intended to rely on that fact, as a defense, he should have pleaded it specially, or, if it was concealed and a fraud was perpetrated on him, he should also have pleaded the fraud specially, and that, not having done so, he can not give evidence thereof or rely thereon, either in bar or in mitigation of damages.
Contracts to marry at some future time present some phases not common to contracts in general. Nearly all ordinary contracts concern money and money values only, but marriage contracts concern, primarily, the association, affections, and joys of domestic life. Property and property rights are of secondary importance. In measuring the damages on the breach of such contracts, there is also a very marked distinction. In the breach of an ordinary contract, the damages are confined to the actual pecuniary loss or injury sustained, but in this class of cases the pecuniary loss is only one element in the measure of damages. The unhappiness, the sorrow, anguish and humiliation resulting from the breach, and often aggravating circumstances, such as seduction, deceit, and fraud, may be considered by the jury in assessing the amount of the recovery. In these respects the action is analogous to an action in tort. Thorn v. Knapp, 42 N.Y. 474; Denslow v. Van Horn, 16 Iowa 476.
In measuring the damages, the jury should contemplate the consummation of the marriage, and consider the benefits and also the disadvantages arising from such relation. The rights and benefits flowing from the marriage should be reciprocal. Hence it follows that the age, health, physical conditions, mental infirmities, social and moral standing, and habits of each of the contracting parties, as well as their property, should be considered.
In an action of this kind there are many things that a defendant may plead in bar of a recovery, and there are many things that he may give in mitigation of...
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