Wrynn v. Downey

• Decision Date: 05 February 1906
• Citation: 63 A. 401,27 R.I. 454
• Parties: WRYNN v. DOWNEY.
• Court: Rhode Island Supreme Court

63 A. 401

27 R.I. 454

WRYNN

v. DOWNEY.

Supreme Court of Rhode Island.

Feb. 5, 1906.

Action by Mary E. Wrynn against Michael R. Downey. There was a verdict for plaintiff, and defendant petitions for a new trial. Granted.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, and JOHNSON, JJ.

Joseph J. Cunningham and Ryan & Nickerson, for plaintiff. Barney & Lee and Prince H. Tirrell, Jr., for defendant.

DOUGLAS, C. J. This case was brought to recover damages for breach of promise of marriage, and after verdict for the plaintiff for $10,000 the defendant petitions for a new trial on the grounds that the verdict is against the law and the evidence, that the damages are excessive, and that the presiding justice erred in admitting certain evidence against the objection of the defendant, and in restricting the argument of defendant's counsel.

The evidence to the admission of which exception was taken was offered to enhance the damages by showing that the defendant had seduced the plaintiff after he had promised to marry her. What the plaintiff actually testified to was that at some time after the promise to marry there was sexual intercourse between the plaintiff and defendant No circumstances are given, nor is it said even that the misconduct was suggested by the defendant. The evidence is as follows: "Q. Whether or not any time after the promise to marry which you have related, was there sexual intercourse between you and Mr. Downey? A. Yes? Q. When after the promise of marriage? A. I don't just remember how long after. Q. What month was it in? A. I think June. Q. State the circumstances preceding it; what was the conversation? A. I don't just remember. Q. I will ask you directly, was it done under the promise of marriage? A. Of course, I wouldn't have thought of such a thing if I didn't think he was going to marry me. Q. Did that intercourse continue, Miss Wrynn? A. Yes." This is all the evidence on the subject, except the defendant's denial of the fact and the statement of a witness that the defendant confessed the fact to him. If the jury had scrutinized the evidence with the care which such an accusation demands they might have declined to believe that a woman who was virtuous before could yield to the persuasion of a lover, and then forget the month in which her fall occurred, and the circumstances which led up to it One would suppose that so serious an event in her life would have marked itself in her recollection more sharply than an ordinary experience. But the evidence quoted above was admitted and accepted by the jury as proof of seduction, and the defendant's exception raised the question which is now before us: Whether or not in Rhode Island evidence of seduction may be admitted in aggravation of damages in an action for breach of promise of marriage.

1. The question came up for decision by the court in 1851, in Perkins v. Hersey, 1 R. I. 493. At that time the full bench of the Supreme Court sat in jury cases, and the charge of Chief Justice Greene is therefore the opinion of the court. In directing the jury as to the rule of damages, he says: "The fact that the plaintiff was seduced you will not consider in this connection. We have a statute which affords the plaintiff a remedy for the injury thus done her in a more appropriate form." The last statement of the charge is not clear. If it refers to the statute (Digest 1844, p. 392, § 78) punishing as a criminal any person who should "obtain carnal knowledge of a female by virtue of a feigned or pretended marriage, or by a false or feigned expressed promise of marriage," it may be said that this affords no remedy to the plaintiff. The statute, though superseded in terms, is still substantially embraced in the statute (Gen. Laws 1896, c. 281, § 5) enacted as "An act for the better protection of the persons of women and girls," etc. (Public Laws R. I. 1889, p. 210, c. 738, January, 1889), which has, however, a much broader scope than the former law. The action of tort which the father or master has for the seduction of his daughter or servant, which in the case of father and daughter would be practically available for her benefit, is not given by statute. The report of the case recites that the plaintiff had given birth to a child, and it seems most likely that the "more appropriate" statutory remedy was the process by which the putative father is compelled to take upon him the care of his child. Whatever may have been the allusion, the doctrine is plainly declared and has been followed in this state for more than 50 years. The principle on which it is founded has been reaffirmed by this court as lately as October 13, 1891, in Conlon v. Cassidy, 17 R. I. 518, 23 Atl. 100, where it is said: "All the counts in the declaration except that entitled 'additional count' are to be regarded as counts for seduction, the promises of marriage being introduced merely in aggravation. To these counts the demurrer is sustained. The plaintiff cannot allege her own criminal misconduct as a ground of action." The opinion in Mainz v. Lederer, 21 R. I. 370, 375, 43 Atl. 876, attempts to explain away the decision in Perkins v. Hersey, supra, and while affirming the doctrine of Conlon v. Cassidy, that for mere seduction there can be no action, holds that, "assuming seduction brought about solely through a promise of marriage," the fact of seduction may be considered in assessing damages. The court in this decision, therefore, presume to change the law which had always prevailed in this state. The defendant asked for a reargument which was granted just before Chief Justice Matteson resigned, and the reargument was had, after Judge Stiness became chief justice, before all four justices of the appellate division. The result was an even division of the court, and the petition for a new trial was denied. So that, while the ruling of the trial court stood for that case, there was no authoritative decision of the question of law involved. The case at bar, then, brings the question before us anew.

Shall this court now give to a woman the light to recover damages from her seducer, who has likewise violated his promise to marry her? Can it hold that, while a woman cannot allege seduction as a cause of action and a breach of promise of marriage in aggravation of damages, she may hereafter in this state allege a breach of promise of marriage as a cause of action and seduction in aggravation of damages? It does not seem to us to be within the province of the judiciary to alter a rule of law which has been so long in force. It is for the court, indeed, to find and declare new applications of old principles, adapting them to the diversified circumstances of the time; but for the Legislature alone, under constitutional limitations, to repeal and modify such laws, either statute or common, as it deems outworn or hurtful. The court may foster and direct the growth and development of established rights, but may not suppress or ignore them, or create new ones. The case at bar presents no new relations or problems. Unhappily, seductions and breaches of the promise of marriage have been dealt with by the courts from time immemorial. Y. B. 45, Edw. III, fol. 23, case 30; Stretch v. Parker, I Rolle. Abr. 22; Holcroft v. Dickenson, Carter, 233; Holt v. Ward Clarencieux, 2 Stra. 937; Harrison v. Gage et ux., 1 Ld. Raymond, 386.

It is true that, in most of the United States, the courts have ignored these limitations on judicial construction and have sustained the contention of the plaintiff as to the admissibility of such evidence. But, aside from the objection just set forth, an examination of the decisions does not convince us that the conclusions which they have reached are supported by sound reason. It was shown by Breese, J., in his able dissenting opinion in Fidler v. McKinley, 21 Ill. 316, that all the cases up to his time, 1859, were founded upon a dictum of Parsons, C. J., in Paul v. Frazier, 3 Mass. 73, 3 Am. Dec. 95. He mentions and criticises Conn. v. Wilson, 2 Overt. (Tenn.) 233, 5 Am. Dec. 663 (1814); Boynton v. Kellogg, 3 Mass. 189, 3 Am. Rep. 122 (1807); Whalen v. Layman, 2 Blakf. 194, 18 Am. Dec. 157 (1828); Green v. Spencer, 3 Mo. 318, 26 Am. Dee. 672 (1834); and Tubbs v. Van Kleek, 12 Ill. 446 (1851), where the Chief Justice dissented. The case of Paul v. Frazier was an action for seduction, and the court held that it could not be maintained, saying: "She is a partaker of the crime, and cannot come into court to obtain satisfaction for a supposed injury to which she was consenting;" and then the learned judge discusses the propriety of amending the law so as to give such an action, and utters the following dictum: "As the law now stands, damages are recoverable for a breach of promise of marriage; and if seduction has been practised under color of that promise, the jury will undoubtedly consider it as an aggravation of the damages."

What was said by Judge Breese in 1859 is substantially true at the present day. All the leading cases, with two or three exceptions referred to below, are based simply upon the authority of this dictum and the cases through which it has been transmitted. King v. Kersey, 2 Ind. 402 (1850), relies on Whalen v. Layman; Wells v. Padgett, 8 Barb. 323 (1850), quotes Paul v. Frazier, Green v. Spencer, and another case in the same volume—Hill v. Maupin, 3 Mo. 323 (1834). Coil v. Wallace. 24 N. J. Law, 291 (1854), holds that the action of breach of promise of marriage is an exception to all rules of damages, and cites Paul v. Frazier. Potts, J., dissenting, says, on this point (p. 318): "I am not able to assent to the doctrine, that in an action for breach of promise of marriage, the plaintiff can legally give in evidence her seduction by the defendant in aggravation of damages. She cannot have an action for seduction; she cannot recover damages directly for such an injury. This is the result of principles as well fixed and established as any in the...