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Whitney v. Elmer.

will be led off from the point in controversy, as presented by the pleadings, into the trial of an indefinite number of collateral issues. But what is still worse, the plaintiff will be allowed to recover damages for an injury, when the recovery will not be a bar to another action for the same cause. I know it is said that the judge must tell the jury not to give damages for the words which are not laid in the declaration. But suppose he does give that instruction, everybody knows that it will have little or no effect. However honestly the jury may intend to follow the guidance of the court, it requires but a moderate acquaintance with the operations of the human mind to see that they will be misled by the introduction of such evidence. If after proving the words laid, imputing larceny, the plaintiff is allowed to prove other words imputing robbery or murder, it is past all doubt that the latter words, whatever the judge may say to the contrary, will influence the jury in fixing the quantum of damages. This has been admitted by those who have received such evidence. To tell the jury at one moment that the evidence is proper, and at the next that they must disregard it, involves a contradiction; and if the jury is composed of sensible men, they will either think lightly of the law, or of those who administer it. But whatever they may think, they will give damages for the words not laid; and thus the defendant may suffer a double punishment for the same fault. It is said that the proof is admissible to show the defendant's malice in speaking the words laid. But if those words are defamatory, malice is implied, and no extrinsic evidence of its existence can be necessary. And if the words laid are not defamatory, proof of express malice will not make them so."

With reference to the evidence of a promise of marriage, it

may be said, as was said by Gardner, J., in Howard v. Sexton, “as this was not essential to sustain the action, there could be no assignable reason for the admission of

Whitney v. Elmer.

such testimony, except to aggravate the damages.” The

” judge, by bis charge, substantially instructed the jury that they might consider the promise of marriage not only as one of the circumstances attending the seduction of the plaintiff's daughter, but they might, in addition to that, also, regard it as one of the circumstances of the case in determining the damages to be recovered by the plaintiff. The jury were in effect told that after they had found that the defendant seduced the plaintiff's daughter, and after they had determined that the plaintiff was entitled to a verdict in his favor therefor, they might regard the contract of marriage, in fixing the amount of damages to be recovered by the plaintiff. The jury were, by this charge, authorized to assess against the defendant, damages to an unlimited amount, on account of the promise of marriage, and no one can know how much of the $1000 damages the jury gave in consequence of the promise. Notwithstanding nine-tenths of this verdict may have been given by reason of the promise of marriage, yet there is another party, who, in another action, may recover every farthing of damages arising from the promise or its breach, and whose right to damages is not in any way limited or affected by the recovery in this case. The jury were not informed that any one other than the plaintiff could recover on account of the promise of marriage, or its breach. The judge, in speaking of the damages to be recovered on account of the promise of marriage, in his charge, as stated, by way of parenthesis, says, “not for the purpose of giving damages for a breach of promise of marriage.” The mere promise of marriage, without proof of its breach, could not be regarded for the purpose of giving damages for a breach of promise of marriage. The judge distinctly charged that the jury might regard (i. e., pay attention to; mark particularly; consider seriously; treat as something of peculiar importance, value or sanctity ; see Webster's Dictionary,) the promise of marriage as one of the circum

Whitney v. Elmer.

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stances of the case in determining (i. e., in fixing the boundaries of; in setting bounds to; in ascertaining the quantity or amount of,) the damages to be recovered by the plaintiff. The jury having been allowed to increase the damages to an unlimited extent on account of the promise of marriage, the purpose of the jury in so doing was of little consequence to the defendant. Proof of the promise could not be of any service in the case for any purpose except to enhance the damages. As was substantially said by Bronson, J., in Root v. Lowndes : “If the defendant seduced the plaintiff's daughter, whereby she became pregnant, and the plaintiff lost her services, the cause of action was established, and evidence of a promise of marriage was wholly unnecessary. If the seduction, pregnancy, and consequent loss of service, were not proved, proof of a promise of marriage could not be of any conceivable importance.”

If the defendant promised to marry the plaintiff's daughter, that fact would, in no legitimate way, tend to show that he had carnal kuowledge of her, or that the plaintiff' lost her services by reason of such knowledge. The female is entitled to recover all the damages arising from, or consequent upon, the promise of marriage. In Wells v. Padgett, (8 Barb. 323,) which was for breach of promise, it was held, that if the defendant's promise of marriage was made with a view to seduce the plaintiff, and the defendant by means of the promise, seduced her, the jury should consider the seduction in aggravation of the damages for the broken promise. This was the first case in this State presenting that question. In that case, Mason, J., in an able and elaborate opinion, presents the distinction between admitting evidence of seduction in an action for breach of promise, and admitting evidence of a promise of marriage in an action for seduction. Among other things, he says: “The objection that the parent has his action for the seduction, is equally untenable. The loss of service is the

Whitney v. Elmer.

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gist of the action, when brought by the parent. The child's loss of character, and dishonor and anguish, and distress of mind, do not constitute the basis of the parent's claim to damages. The action for breach of marriage promise is given to afford an indemnity to the misused party for the temporal loss which the party has sustained in not having the contract fulfilled; and this has always been held to embrace the injury to the feelings and affections, wounded pride, and the loss of marriage. Now it seems to me that all of these things are greatly aggravated where the seduction has been accomplished under the false color of a marriage promise, and that here is a proper field of damages in this action, which is untouched by the parent's action for seduction.

It seems to me that here is a broad field for assessing damages, which the parent's action for seduction does not reach, and which the law will allow the jury to occupy in assessing damages, where the seduction has been accomplished through a fraudulent promise of marriage. But it is said that the law is settled in this state, that in an action for seduction, by the parent, evidence that the defendant had promised to marry the daughter was inadmissible to enhance the damages, and that the converse should be equally good. It is true, that in an action for seduction, by the parent, he is not allowed to prove the defendant'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 dainages, 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 the parent to recover damages on account of the contract of marriage.” This opinion of Mason, J., was approved and followed in the Court of Appeals, in Kniffen v. McConnell, (30 N. Y. 285.) Wells v. Padgett and Kniffen v. McConnell, clearly show

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Whitney v. Elmer.

that Sarah, the plaintiff's daughter, may still recover all the damages, on account of which the plaintiff has recov-, ered, by reason of the promise of the defendant to marry the plaintiff's daughter, Sarah. The recovery in this case will not bar the right of Sarah to recover the second time, the same damages, and for the same cause, for and upon which the plaintiff was allowed to recover in this action; and the defendant, if this judgment is sustained, may be required to pay the daughter, and also the father, the same damages, for one and the same fault, and made to pay double the amount of damages done. The damages recovered in this action on account of the promise, were precisely those which the court, in Wells v. Padgett, said were “untouched by the parent's action of seduction, and “which the parent's action for seduction does not reach."

Even if the judge had instructed the jury to wholly disregard the evidence of a promise of marriage, in fixing the damages, this would not have cured the error; because, notwithstanding such instruction, the evidence might still influence the verdict. (Gillet v. Mead, 7 Wend. 193. Howard v. Sexton, 4 N. Y. 157. Root v. Lowndes, 6 Hill, 519. Erben v. Lorillard, 19 N. Y. 299, 302, 303.) The first three of these cases illustrate and show what a jury may reasonably be expected to do on the subject of damages, in such cases, if the evidence permits, despite anything the judge may say in his charge. I have before sufficiently referred to these cases on this point. In Erben v. Lorillard, Grover, J., says: “The plaintiff's counsel insists that this, if error, was cured by the charge. When illegal evidence, properly excepted to, has been received during the trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict, the error cannot be disregarded. The rights of parties can only be preserved by adhering to this rule. It would be vain to

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