Wilds v. Bogan

Wokden, J.

This was an action by the appellee, against the appellant, for the breach of a contract for marriage, *454 the complaint alleging, by way of aggravation, the seduction of the plaintiff by the defendant, and the birth of a child.

Issue; trial by jury; verdict and judgment for the plaintiff.

The following interrogatories were propounded by the defendant, and answers returned thereto by the jury:

“ 1st. Was there a contract of marriage made between the plaintiff and defendant?

“Answer. There was a marriage contract made between the plaintiff and defendant.

“2d. If there was a marriage contract, when was it made?

“Answer. In the Fall of 1867.”

All the other assignments of error are embraced in that upon the overruling of the motion for a new trial.

The following were the causes stated for a new trial :

“ 1st. That the verdict was contrary to law, and not sustained by the evidence;

“ 2d. That the verdict of the jury was contrary to the evidence;

“ 3d. Error of law arising at time of trial, in this, that the court permitted improper testimony, on behalf of the plaintiff, to go to the jury, which was excepted to at the time;

“4th. That the court refused the defendant to introduce proper and legitimate testimony, which was duly excepted to at the time ;

“ 5th. That the court erred in instructing the jury, in this, to wit:

“‘If the jury should believe, from a preponderance of all the evidence in the cause, that the defendant did not promise to marry the plaintiff, and did not, under such promise of marriage, seduce the plaintiff, then you must 'find for the defendant. Should the jury however find, from a preponderance of the evidence given in the cause, that the defendant did promise to marry the plaintiff, and, *455 under such promise of marriage, did seduce the plaintiff, as alleged in the plaintiff’s complaint, and that the result ■or offspring of the seduction was the begetting of a bastard child by the defendant from [upon ?] the body of the plaintiff, as alleged in the complaint, then and in that case you may, in assessing the plaintiff’s damages, take into consideration the begetting and having such bastard child by the plaintiff^ as alleged in the complaint, so far as you ¡may consider the plaintiff" damaged in feelings, her pain and suffering, her humiliation in mind i'n having said -child by said- defendant. But, in such cáse, you ought not to consider the care, maintenance, education or raisiñg -of said child as damages in this cause;’

“ 6th. Misconduct of the jury, in this, to wit, that the jury took with them to- the jury room the instructions, -or notes of instructions, of the court, without the consent of the defendant or his counsel;

“ 7th. That the damages awarded by said jury in their verdict were excessive.”

The evidence is not in the record; hence no question arises here on the first, second or seventh causes for a new trial.

The third and fourth are too indefinite to raise any question here. They utterly fail to point out, or in any way designate, the evidence received on the one hand, or that rejected on the other. Cobble v. Tomlinson, 50 Ind. 550 ; The State, ex rel., etc., v. Wilson, 51 Ind. 96 ; Heady v. The Vevay, etc., Turnpike Co., 52 Ind. 117 .

This leaves for our consideration the fifth and sixth causes.

It is objected to the instruction set out in the fifth cause, that it implies that the action may be' maintained, if the defendant promised to marry the plaintiff", though the plaintiff did not promise to marry the defendant; though, in other words, the promises were not mutual. See King v. Kersey, 2 Ind. 402 . The main purpose of the charge seems to have been, besides laying down the proposition *456 that the verdict should accord with the preponderance of the evidence, to lay down the rule of damages in case the jury should find for the plaintiff. And, in respect to the rule of damages laid down, we think the defendant can not complain.

If the jury may: have understood from the charge, that they might find for the plaintiff, upon proof that the defendant promised to marry her, without proof that she promised to marry him, still the charge could have done no possible harm, as the jury found, that, in point of fact, the promises were mutual; in other words, that “ there was a marriage contract made between the plaintiff and defendant.” This finding implies a mutual contract between the parties. .

¥e pass to the sixth cause—misconduct of the jury. The supposed misconduct is stated in the bill of exceptions as follows:

William Burget,'one of the jurors, took with him from the judge’s desk a paper containing one page of the notes of the instructions given by the court to the jury in the cause; that he took the paper to the jury room with him ~ that he looked at it, but did not read it; that he laid it. down, and that the paper remained in the jury room during the deliberations of the jury, but that no juror read or examined it at any time; that the paper was taken by the juror by mistake, he supposing it to be the written interrogatories in the cause; that it was returned by him with the verdict and interrogatories into court, he being-the foreman of the jury; that the paper was taken by the juror into the jury room, without the knowledge or consent of the court, or of either of the parties or their attorneys.

We are unable to see any misconduct whatever on the part of the jury, or any one of them, or any thing in the circumstances that affords the slightest ground for a new trial. A simple mistake in the juror in taking the paper, supposing it to he the interrogatories, can not be imputed *457 to him as misconduct. .Then, the mistake did no one any harm, as the paper was not read by any member of the jury. It could, therefore, have had no influence whatever upon their verdict.

The judgment below is affirmed, with costs.