Whitney v. Elmer.

be taken into consideration by the jury with a view to increase the damages to be recovered by the plaintiff. The court refused so to charge the jury. To which refusal the counsel for the defendant excepted. The counsel for the defendant requested the court to charge the jury that if the jury should find that the defendant promised to marry Sarah Whitney, and that the defendant refused to perform, and broke that promise, that such refusal and breach of promise could not be taken into consideration by the jury with a view to enhance the damages to be recovered by the plaintiff in this action. The court refused so to charge. To which refusal the counsel for the defendant excepted.

The judge refused to charge the jury on the subject of the evidence given of a promise made by the defendant to marry said Sarah, or on the subject of the damages to be given by reason of such promise, otherwise than as charged by him as herein before stated, and declined to charge the above propositions, for that reason. To which refusal and decision the counsel for the defendant excepted.

The jury found a verdict in favor of the plaintiff, for one thousand dollars.

B. Healy, for the appellant.

I. The court erred in allowing the plaintiff to prove by Sarah Whitney that a short time prior to, and at and about the time of the carnal knowledge of said Sarah by the defendant, the defendant undertook and promised to marry said Sarah, in view and consideration of her promise to marry the defendant. This evidence was admitted generally in the cruse, and not limited to any particular purpose, and was inadmissible, for reasons stated under the next point.

II. The court charged the jury "that if they found that the defendant promised to marry the plaintiff's daugh

Whitney v. Elmer.

ter before he had sexual intercourse with her, they were at liberty to consider that with the other circumstances atteding her seduction; and they might also regard it as one of the circumstances in the case in determining the damages to be recovered by the plaintiff, not for the purpose of giving damages for a breach of promise of marriage, but as one of the circumstances attending, and under which the seduction of the daughter was effected." The defendant excepted to that part of the charge which directed the jury that they might consider the circumstance that the defendant promised to marry the plaintiff's daughter, in determining the damages the plaintiff should recover, if they found in his favor. The admission of this evidence, and the charge of the court, particularly that part to which the defendant excepted, were erroneous, as shown by the following authorities, and by the principles on which they were decided. (Gillet v. Mead, 7 Wend. 193. Foster v. Scoffield, 1 John. 297. Clark v. Fitch, 2 Wend. 459-464. Wells v. Padgett, 8 Barb. 323, 326, 327. Sedg. on Dam. 544, 2d ed. Dodd v. Norris, 3 Camp. 519. 3 Phil. Ev. 532, 4th Am. ed. Brownell v. McEwen, 5 Denio, 367.)

In Gillet v. Mead, evidence was given, under objection, that previous to having carnal knowledge of the plaintiff's daughter, the defendant promised her marriage. The judge allowed it to be given to prove the seduction, and to show that the intercourse between the parties was such as a prudent parent might have admitted, but not to lay the foundation for a recovery of damages for the breach of promise. The judge charged the jury, that in assessing the damages of the plaintiff, they should have no reference to the promise of marriage, the remedy for the breach of which belonged only to the female, by action in her own name. A verdict was rendered in favor of the plaintiff. The court granted a new trial, because the judge at the trial erred in receiving evidence of a promise

Whitney v. Elmer.

of marriage. Savage, Ch. J., said: "In Foster v. Scoffield, (1 John. 299,) it was held improper. There the judge had instructed the jury that they might give damages for the seduction and also for breach of promise; here the jury was cautioned on that subject, but the evidence be ing before them, they might be influenced by it even against their own determination not to consider it; this case has been recognized as correct, 2 Wend. 464."

In Clark v. Fitch, on the trial the plaintiff offered to prove by the daughter, that previous to the improper intercourse between the defendant and her, the defendant had promised her marriage. This evidence was objected to and excluded. A verdict was rendered for the defendant. The Supreme Court held that this evidence was properly excluded, and on page 464, says: "He (the judge) correctly rejected the evidence of a promise of marriage."

In Wells v. Padgett, Mason, J., in giving the opinion of the court, says: "It is true, that in an action for seduction, by the parent, he is not allowed to prove the defendaut's promise to marry his daughter, and thereby make such promise the basis of increasing the damages. There is a good reason for this. The parent is not a party to the contract which he seeks to make the basis of damages, and there is a party to it who has a right to claim all damages which have resulted from a breach of it; and consequently the law will not permit a parent to recover damages on account of the contract of marriage. The case is very different, however, when the female brings her action upon the contract."

In Brownell v. McEwen, the court says: "It is true that it is inadmissible to prove that the defendant made the daughter a promise of marriage, with a view to enhance the damages in this action."

Sedgwick says, (Sedg. on Dam. 544, 2d ed.,) "so, also, it is well settled that in this action no evidence can be given

Whitney v. Elmer.

as to any promise of marriage, either with reference to the right of action or measure of damages; the remedy for the breach of that contract belonging to the female in her own name. Thus, in the king's bench, Lord Ellenborough said, 'the daughter may be asked whether the defendant paid his addresses in an honorable way; further than that you can on no account go.' So in New York, in such a case, it has been held incorrect to admit this description of evidence, whether the judge instructs the jury that they may give damages for the seduction and also for the breach of the promise, or whether he admits it only to prove the seduction, but not to enhance the damages."

In Phillips on Evidence, (vol, 3, p. 532, 4th Am. ed.,) it is said: "Proof of the defendant having given the daughter a promise of marriage, before he seduced her, is not admissible. The breach of such an engagement may be made the subject of another action; and it is an injury to the daughter, not to the parent."

If the plaintiff might give the promise of marriage in evidence to increase damages, it would seem to follow that the defendant should be permitted to prove an actual offer by him to marry the daughter, in mitigation of damages; yet such evidence is not admissible. (Ingersoll v. Jones, 5 Barb. 661.) In actions of slander and libel, the plaintiff may prove express malice, ill will or hostility on the part of the defendant towards the plaintiff, either to aggravate the damages, or to defeat the defense of privileged publication. (Townsend on Slander and Libel, § 392, and cases there cited. 2 Greenl. Ev. § 418. Fry v. Bennett, 28 N. Y. 328. Kennedy v. Gifford, 19 Wend. 296.) And for such purpose the plaintiff may prove the publication of the words alleged, or words of similar import, at other times, and on different occasions from those stated in the complaint, and he may prove any act or language of the defendant, not in itself actionable, tending VOL. LX.

17

Whitney v. Elmer.

to prove malice on the part of the defendant in regard to the particular slander or libel which is the subject of the action. (Fry v. Bennett, 28 N. Y. 324. Root v. Lowndes, 6 Hill, 518.) But words which may be the subject of another action, cannot be given in evidence to show malice. (Howard v. Sexton, 4 N. Y. 157. Root v. Lowndes, 6 Hill, 518.) The language of the courts in the last two cases, is peculiarly applicable to this. In Howard v. Sexton, the action was slander. The court, on the trial, allowed the plaintiff to prove the speaking of defamatory words not contained in the declaration, as evidence of malice, to show with what mind the words laid in the declaration were spoken, and for no other purpose. In delivering the opinion of the court, Gardner, J., (among other things) said: "The evidence was admitted by the judge, to show with what mind the words stated in the declaration were spoken, and for no other purpose.' In other words, to prove express malice. As this was not essential to sustain the action, there could be no assignable reason for the admission of such testimony, except to aggravate the damages. And yet upon that question the learned judge, in effect, instructed the jury to disregard it. If they had regarded the ruling of the court, which is never done under such circumstances, the evidence was irrelevant, and should have been excluded." In Root v. Lowndes, the declaration contained three counts. After the plaintiff had proved the speaking of slanderous words at three different times, she was allowed to prove slanderous words. spoken at other times, some of which were not laid in the declaration. The court, per Bronson, J., said: "To admit the proof of such words (those not laid in the declaration,) must be a surprise upon the defendant. It cannot be supposed that he will be prepared to try a matter of which the plaintiff has not complained. That is not all. If the plaintiff may prove the words, the defendant may justify as to those words; and thus the court and jury