BREACH OF PROMISE OF MARRIAGE.

[Pickaway Circuit Court,

May Term, 1887.]

Clark, Cherrington and Bradbury, JJ.

#### *REED M. DUVALL v. EMMA FUHRMAN.

1. Settlement of the Law Before Argument.

Under sec. 5190, Rev. Stat, it is discretionary with the court whether the charges requested by counsel shall be given before or after the argument.

9. Failure to Prove Charges of Unchastity Taken as an Aggravation.

Where the court charged as follows: If you find that the defendant has attempted to prove that the plaintiff was guilty of unchaste conduct or lewd acts before the breach of the contract, and failed to prove the same by a preponderance of the evidence, such failure may be taken as an aggravation of damages, unless such attempt was made with the reasonable hope and honest expectation of establishing the same; held, that this was a compliance with the rule in White v. Thomas, 12 O. S., 312.

8 Amount of Damages Where Contract is Broken with Bad Motives.

If the defendant has broken his contract of marriage with bad motives, and has been guilty of ruthless and unjustifiable conduct, the jury may give such an amount of damages, not flagrantly excessive and disproportionate to the injury, as will mark their disapprobation, and deter others from the violation of such sacred promises.

4. Value of Defendant’s Estate May be Shown.

In estimating the damages, for a breach of promise and seduction, the jury are not confined to the amount of property which the defendant had at the time of such breach.

5. Proof of Good Character in Rebuttal.

The defendant attempted to show, by cross-examination of the plaintiff, that she had been guilty of unchaste acts, at several times after the suit was brought; the plaintiff was allowed, in rebuttal, to prove her good character, and it was held, that such evidence was proper in answer to the charges made by such cross-examination, although this cross-examination could have been objected to by the plaintiff.

9. Evidence of Unchastity After Action Brought not Admissible.

In an action for breach of marriage contract and seduction, evidence tending to show unchaste conduct on the part of the plaintiff after the action was brought, ought not to be admitted. *t*

*7.*Verdict not Set Aside as Excessive.

In such actions courts rarely interfere to set aside a verdict, on the ground of excessive damages. If the amount is flagrantly outrageous and extravagant, so as to evince intemperance, partiality, or corruption on the part of the jury, it is the duty of the court to reduce the amount or set aside the verdict according to the circumstances. Under the circumstances of this case a verdict of $9,800 is not excessive.

Error to the Court of Common Pleas of Pickaway county.

*175This was an action by Emma Fuhrman against Reed M. Duvall, in which the plaintiff alleged that on or about the 6th day .of September, 1878, at the county of Crawford, Ohio, the defendant promised to marry her and she to marry him.

That in October of that year he seduced her, and afterwards she had a child by him, and that he subsequently absconded.

The action was brought in Pickaway county September 16, 1885; an attachment is issued, and the Third National Bank, Circleville, O., in which Duvall had a large sum of money on deposit, was garnisheed.

The said Duvall filed an answer denying all the averments.

On the 3d day of January, 1887, judgment was rendered on a verdict in favor of the plaintiff below for $9,800.

There was a motion for a new trial, which was overruled, and a bill of exceptions taken.

T. E. Powell, for plaintiff in error.

1. The charge of the court, in regard to the failure of the plaintiff in error, to prove misconduct on the part of the defendant in error, was erroneous. The charge did not comply with the law in such cases. White v. Thomas, 12 O. S., 312, 313; 15 111., 426; 21 111., 308; 6 Cow., 254; 1 Am. R., 563.

2. The charge of the court is erroneous in regard to damages.

3. The instructions requested, ought to have been given before the argument.

4. The action of the court in refusing to .admit evidence of the misconduct of the plaintiff below after the action was brought, was an error. 7 Cow., 21-3; Palmer v. Andrews, 7 Wend., 142; Johnson v. Caulkins, 1 Johnson’s Cases, 116.

5. The court erred in not giving the instruction asked for to the jury, to-wit, that in assessing damages, they must look only to the conditions and circumstances of the defendant below, at the time of the breach of the contract, and cannot take into account any property that may have been acquired by the defendant since the alleged breach of the contract.

6. The error of the court in allowing the plaintiff below to introduce evidence of good character in rebuttal.

Mr. Powell discussed many other points that it is not deemed necessary to notice here.

On behalf of the defendant in error, the case was argued by E. B. Finley and Henry F. Page. S. W. Courtwright was associated with them in the case.

The defendant in error had a right, in rebuttal, to offer testimony of her good character up to the time of her seduction. State v. Shean, 32 la., 88; 1 Taylor on Evidence, sec. 362 (8th ed.); Bate v. Hill, 1 C. & P., 100; Rex v. Clark, 2 Starkey R., 124; Brown v. Goodwin, Irish C. R., 61; 2 Stark. Evidence, 306-7 (old ed. p. 222-252); Woods Mayne on Damages, sec. 685; 1 Wharton’s Evidcncc see. 4:9.

Phillips (1 Phillips, 761, note), and Stephens (1 *Nisi Prius,*26), say: “It is often impossible to give a satisfactory answer to a charge except by general evidence.”

The old cases in the *Nisi Prius*courts in England (1 Campb., 460; 3 Campb., 519; 3 Esp., 116) are thus either doubted or repudiated by later and better cases and authors.

2. Evidence of misconduct' on the part of the defendant in error after her seduction by plaintiff in error, was properly rejected. Mann v. State, 34 Geo., 1; 3 Sutherland on Damages, 327; 19 Cent. L. J., 446; Slocum v. People, 90 111., 281; Wood’s Mayne, 164; Morgan v. Ross, 74 Mo., 324; 59 Mo., 243; 1 Stephen’s *Nisi Prms,*26; Elsam v. Faucett, 2 Esp., 562.

Plaintiff in error promised to marry her, ruined her, deserted her and mar*176ried another woman — what is it to him, if many years afterwards, she is unchaste? If she is, who made her so? is he not estopped from setting up such evidence?

Such evidence “does not even tend to mitigate damages.” 74 Mo., 324.

‘‘The first step on the road to ruin is followed by rapid advances in the same direction, and the unchaste conduct of a female after her seduction is only an aggravation of the crime of her seducer.” 59 Mo., 243.

Independent of the foregoing principle, evidence aiter action brought, of misconduct, is not to be admitted. 11 Am. R., 154; 34 la., 496; Greenleaf v. McCarthy, 14 N. H., 304.

It is said that in actions of this kind the plaintiff may recover for character. However this may be in actions for mere breach of promise, yet when seduction is alleged, the only character which the plaintiff may recover for, is the character which she lost by her seduction; after her seduction she has no character to sue for. The case of Johnson v. Caulkins, 1 Johnson’s Cases, 116, if correctly reported (which we doubt, as that is a book of little authority), is a disgrace to our civilization. Such a rule affords a temptation to a scoundrel to hire another scoundrel, even after action brought, to seduce the female into compromising situations.

3. It was discretionary with the court whether they would give the instructions asked before argument. Section 5190, Rev. Stat.; U. M. Life Ins. Co. v. Reif, 7 Dec. R., 200 s. c. 1 Bull., 290).

The charges were presented, overruled and excepted to in a lump. Adams v. State, 25 O. S., 584, 587. Error on this point must be shown affirmatively. Dille v. Lovell, 37 O. S., 415.

4. Theunature of the defense set up.in bad faith. White v. Thomas, 12 O. S., 312; Field on Damages, 433; *SO*N. Y., 285; 3 Sutherland on Damages, 320.

5. The attempt of Duvall to fabricate evidence. See 2 Wharton on Evidence, sec. 1265; 38 Am. R., 184.

6./ Circumstances which the jury may consider to aggravate damages. 18 Cent. L. J., 445-6; Field on Damages, 433, 430; 3 Sutherland on Damages, 316 to 324; Cooley on Torts, 511, 512; 11 Pa. St., 317; 102 Mass., 399; 101 Mass., 357-8; Wood’s Mayne on Damages, 164; Coil v. Wallace, 24 N. J. Law, 291; .2 Parsons on Contracts, 68-9; Southard v. Rexford, 6 Cowen, 254.

7. Courts seldom, in actions of this kind, set aside a verdict because it is too large. 1 Graham’s New Trials, 418-19.

*

 Judgment by agreement in this case for $7,675, was affirmed by the supreme court, June 19, 1888.

Cheriungton, J.

Before the argument began, the counsel for the defendant submitted to the court twenty-one propositions, and requested that they be given to the jury at that time, which the court refused to do. The propositions were offered generally, and as a series, and not singly, and were excepted to generally. Without laying any stress upon this fact, which was a sufficient reason for refusing to give them, if any one of them was bad, and it is conceded by the defendant’s counsel that at least one of them is not law, we are of the opinion that the giving or refusing of the instructions, at that stage of the case, was discretionary with the judge.

> “Section 5190. When the jury is sworn the trial shall proceed, except as provided in the next section, in the following order, unless the court for special reasons otherwise order.”

We have been cited to the case of McHugh v. State, 42 O. S., 154. This case was one decided under section 7300, and it is to be noticed that the words “unless the court for special reasons otherwise orders” are not found in the *177last named statute; consequently the remarks of the court in McHugh v. State, *supra,*are not decisive of the present case. Neither do we regard the case cited as deciding, even in a criminal case, that the statute is' mandatory. However that may be, in a civil case we are of the opinion that it is a matter of discretion'with the court whether the instructions are given before or after argument.

Again, it is insisted that the motives of the defendant below, in regard to the defense he sets up, cannot be considered, unless there is an entire want of proof. Now we are aware that in some cases cited, the expressions, “entire failure of proof,” “fail altogether,” are made use of. We do not see how a party can fail altogether or entirely, unless he offers no evidence at all. If he offers no evidence at all, or attempts to offer none, he fails altogether, but then he makes no defense. We are speaking of cases like the present, when the matter of defense is not set out in the answer, as it was not done in this case. But where the defendant, as in this case, offers some testimony to defeat the action or reduce the damages, it cannot be said that he fails altogether. We think those expressions refer ro cases where the defendant puts in the record a scandalous defense, and then offers no proof of it at all.

We have examined the charge complained of, and also the case of White v. Thomas, 12 O. S., 312, and we think it fully complies with all that is required by the supreme court in that case. The charge on this subject was in the following terms:

> “If you find from the evidence that the defendant has attempted to prove that the plaintiff was guilty of unchaste conduct- or of lewd acts, either with himself or others, before the breach, and had failed to establish the same by a preponderance of the evidence, then such charge and failure on the part of the defendant may be taken in aggravation of damages in this case, provided you find for the plaintiff, unless you are satisfied from the testimony that such attempt was made with a reasonable hope and an honest expectation of establishing the same.”

> “If you find the contract of marriage, as is alleged by her, and the breach • thereof was actuated by bad motives, and he was guilty of a ruthless and unjustifiable breach, you may give under such circumstances, such an amount of damages not flagrantly excessive and disproportionate to the injury, as will mark your disapprobation, and deter others from the violation of such sacred promises.” .

It is contended that the court of common pleas ought to have instructed the jury that they cannot, in assessing damages, take into consideration any property that may have been acquired by the defendant below after the breach of the contract.

We think there was no testimony before the jury to justify this charge. But if there had been such testimony, the proposition is not law. The jury are not confined in giving damages to the amount of property the defendant may have had at the time of the breach of the contract. It is well-settled that the jury may give punitive damages, on account of the conduct of the defendant subsequent to the breach of the contract, even on account of the defense he sets up, the testimony he gives, and the manner in which he conducts the defense before the jury. It was claimed by the plaintiff below that the conduct of the defendant below was peculiarly insulting on the trial, and intended to degrade and disgrace her. If the jury so believed, they might give vindictive damages without any regard to his property, no matter when it was acquired.

On the trial, the defendant’s attorneys cross-examined the plaintiff at great length,.to show, if possible, that she had been guilty of acts of lewdness, after this action was brought, with one Richard Garner, at Cleveland and Columbus, Ohio. She admitted that she had met Garner at those places, but denied that she had been guilty of any misconduct with him. Thereupon the plaintiff. *178below called a number of witnesses who had known the plaintiff for many years at Bucyrus, Ohio, where she was born and had always lived, and offered their testimony as to her good character, to all which the defendant below objected, but the objection was overruled.

We are all well satisfied that this testimony in rebuttal was competent for the purpose for which it was offered. We have examined the cases presented by the plaintiff’s counsel, in regard to this testimony; and the reception of it by the court is to be justified both upon principle and authority. The plaintiff had a perfect right to repel the suspicions cast upon her by the cross-examination of defendant’s counsel, not only by her denial, but by testimony of her good character for virtue, chastity and sobriety. We think it is due to any woman, placed in the situation she was, by a cross-examination, to corroborate her testimony by the reputation she has borne among her neighbors. Jurors who are well acquainted with men, and seeing the infinite meanness of that man Garner, would not believe him, and would wholly discard his conduct from then-minds. But unsophisticated jurors might have their minds poisoned, and how is she to meet the suspicions aroused by the attempt of Gamer to place her in compromising situations (situations which she is compelled, as a truthful witness, to acknowledge) except by general evidence of good character? It is often impossible to give a satisfactory answer to charges unexpectedly made in any other way.

Another point made by the plaintiff in error was the rejection of evidence tending to show acts of lewdness after the commencement of this action; and the rejection of this testimony by the court of common pleas was described by the defendant’s counsel as monstrous. On the contrary, we are of the opinion that to allow the admission of such evidence would be monstrous. In an action for breach of marriage promise and seduction, to hold that if the plaintiff commits an act of unchastity with some other man, at any distance of time, it rehabilitates the defendant below, is in the highest degree unjust, and in our opinion is contrary to public policy, as well as the best considered cases. How can the defendant take advantage of her subsequent misconduct after he has destroyed her character and ruined her for life? He is estopped from thus taking advantage of his own wrong; and the strong language used by the courts in some of the cases cited by the counsel for the defendant in error, meets our approbation.

We might further add that we consider the status of the case as fixed by the bringing of the action, and that testimony of occurrences afterwards tending to bar the action or to mitigate the. damages, ought not to be admitted.

But the plaintiff in error also complains that the jury erred in rendering a verdict against him for the sum of $9,800; that the same was excessive, and evinces passion on the part of the jury.

In actions of this nature, the courts rarely interfere to set aside a verdict as excessive. If the damages are so flagrantly outrageous and extravagant, as to evince intemperance, partiality or corruption on the part of the jury, it is the duty of the court to reduce the amount or set the verdict aside, according to the circumstances. But is the present such a case?

I am unwilling to comment on the testimony at any length, for fear that I might exceed the bounds' of judicial propriety. The conduct of the defendant below, Duvall, deserves the severest criticism and condemnation. I never knew anything equal to it; I never heard anything equal to it; I never read anything in truth or fiction, that bore any resemblance to it. The conduct of Duvall is simply infamous. His attempts to manufacture evidence for himself, to entrap the plaintiff in the action, his suggestions made to her by persons hired for that purpose, to use forged papers and to sustain her cause by perjury, their endeavors to get her into infamous places, when they might accttse her of lewd acts; his sending his wife, in company with an adventuress, to the plaintiff, with the story that-she too had been the victim of his lust, and who confidingly *179tried to get from her statements.prejudicial to her cause; the testimony he gave on the trial; all these things show a depth of meanness beyond which it would be difficult to go, and the only wonder is that the jury were not overwhelmed with indignation and did not give a verdict for all that was claimed by the plaintiff in her petition ($15,000). We are all perfectly satisfied with the verdict.

Judgment affirmed.