Johnson v. Leggett

1. Breach oe Promise oe Marriage; Instruction, Not Error. In an action for breach of promise of marriage, in which the plaintiff testifies positively to the making of the marriage contract, and in which there is testimony of long-continued attentions paid by the defendant to the plaintiff, it is not error to instruct the jury that they may take into consideration, in support of the express' contract testified to by her, the facts and circumstances accompanying the acquaintance of the parties, his visits to her, his escort of her to meetings and social gatherings, and in fact the whole of their intercourse. ‘ 2. Instruction, Which Might Have Been Given, Refusal of. The mere fact that a court refused to give an instruction asked by one of the parties which it might properly have given, does not prove that such refusal was an error working substantial injury to the rights of the party asking the instruction.' 3. Impeachment of Witness; Buie; Exception. The general rule is, that a party may not impeach his own witness; and while the court may sometimes, when it appears that a party is surprised by the testimony of a-witness he has called, permit him to show what testimony he expected from the witness, and what reason he had for such expectations, and thus either directly impeach the witness or counteract any injurious effect which such unexpected testimony may have with the jury, yet this is a privilege which should seldom be exercised, only in extraordinary cases, and when it appears that material injury will otherwise result to the party. 4. Verdict, When Set Aside — When Not. It is the duty of a trial court reviewing the action of a jury to unhesitatingly set aside the verdict whenever they have manifestly mistaken the evidence and the verdict is-manifestly erroneous; but where the testimony is very conflicting and presents a doubtful question of fact, one upon which different minds, justly and carefully weighing the testimony, may be expected to arrive at different conclusions, then the trial court should not disturb the verdict, although its judgment may incline to a different conclusion than that reached by the jury. The jury are the triers of fact, and it is not the duty of the trial court to substitute its judgment for that of the jury, but simply to interfere to prevent manifest error.

Error from Franklin District Court. Action by Ella Leggett against Alfred Johnson, to recover damages for a breach of promise of marriage. Verdict and judgment for plaintiff for $1,250, at the January Term, 1882, of the district court. The defendant brings the case here. The opinion states the facts. 1.' The court erred in instructing the jury as follows: “The jury are authorized to take into consideration, in support of the express promise alleged on the part of the plaintiff, the facts and circumstances accompanying the acquaintance of .the parties, the visits of the defendant to the plaintiff, his accompanying the plaintiff to meetings and social gatherings — in fact, the whole intercourse of the parties; and if from all the evidence you are satisfied that the contract testified to' by the plaintiff was entered into, you will be authorized to find for the plaintiff.” It was undoubtedly true, prior to the change in the law of ■evidence, whereby parties were permitted to give evidence, that marriage contracts were in some cases sought to be upheld in the manner given by the court to the jury; but this instruction was erroneous in this, that the inferential promise of marriage was given to the'jury as a support for the alleged specific contract of marriage. If there was a specific contract, then the inferential promise was unnecessary; if there was no specific contract, then in either case too great prominence was given in the charge to the visits of the defendant to the plaintiff. This exact instruction has been commented upon, as we think, in Walmsley v. Robinson, 63 111. 41. There the jury were told in substance “that the promise of marriage might be inferred from- the conduct of the parties and the circumstances which usually attend an engagement of marriage, as visiting, the understanding ¡of friends and relatives, preparations for marriage, and the reception of the defendant by the family as a suitor.” The supreme court in passing upon this instruction declares it too broad. “We think the instruction should not have been given.” “It by no means follows, because a gentleman is the suitor of a lady and visits her frequency, that a marriage engagement exists between them. If,this weré so, it would be dangerous for an unmarried man to pay attention, to an unmarried woman.” It was said by the court that the tendency of juries in such cases “was to lean to the side of the women.” Never had this a clearer exemplification than in this case now before the court. 2. In connection with the charge of the court, the defendant Johnson requested the court to give the following charge to the jury: “If the plaintiff stated to the defendant, or to others who repeated her statements to the defendant, that she was engaged in marriage to a person named Artz, and the defendant believed it, it makes no difference in the case whether in fact she was so engaged.” “If the defendant only paid such attentions to the plaintiff as a man might pay to a woman engaged to another, in consequence of plaintiff’s statements to defendant that she was' so engaged, then the plaintiff cannot rely on such attentions' to prove or substantiate a promise of marriage.” The necessity of this charge, in.connection with the charge already given by the court to the jury, will be seen on a little consideration of the testimony given in the case. It appears from the testimony of many witnesses that the plaintiff had represented not only to the defendant, but to various other parties, that she was engaged to a young man at her old home in Illinois, by the name of Artz. This appears by the defendant’s own testimony, which the plaintiff put in as part of her case, being the so-called deposition of the defendant, in which it is in evidence that he addressed several letters for the plaintiff to Samuel Artz, sometimes in San Francisco, sometimes at Oregon, Illinois. From this' testimony and that of other witnesses, it would seem.that the plaintiff gave out that she was engaged to a man by the name of Artz, in Illinois. The court having charged the jury- that the visits of the defendant to the plaintiff might be considered by them in proof of the marriage contract, it became important atad relevant that the jury should be instrubted that if the visits and the intercourse had been made on the supposition of an engagement of the plaintiff to another person than the defendant, then they would not have the same weight or influence as they would have were they addressed to an unengaged person. The plaintiff, to negative this story that she had circulated with respect to her engagement to Artz, (nowhere denying it herself or that she had given currency to it,) introduced in evidence the deposition of some witnesses in Illinois by that name to the effect that there was no such person there to whom she could become engaged. Now the jury should have been told that she was bound by her statements ; that Johnson was not required to ascertain- whether she was or not an engaged person. It is quite evident that two .persons who are engaged to different parties might treat each other with much more freedom, knowing of their mutual engagement, than they otherwise would. If Artz was a myth, it would make no difference if the defendant really believed that she was engaged to such a person; and after the court had seen fit to instruct the jury as to the relations and general intercourse of the parties, as-they seemed on the theory of the marriage contract, it would seem very clear that the jury should have been instructed on the other branch of the case also. For it may well be believed that Johnson would not have been so frequent a visitor to her house had he not known that she was engaged tQ' another, and hence his conduct would not be misconstrued. 3. The court below certainly erred in refusing the second instruction asked for by the defendant. If the defendant paid only such attentions to the plaintiff as a man might properly do to a young lady who was engaged to another, and they were paid in accordance with that understanding, she could not make them the basis of a promise of marriage between herself and defendant. It is the case of a young woman, a stranger, coming into a country where there are few unmarried men, herself poor and born out of wedlock, telling that she is engaged to a young man back in the village from which she came; under these circumstances she receives visits from the defendant, who was in charge of the house in which her family lived, and attempts to make these attentions the basis of a promise of marriage. Under these circumstances, it would seem to be the duty of the court to instruct the jury upon so vital a point. 4. The ruling of the court in regard to the testimony of Jane Pledges we think is error in this case. It is true that as a general rule, the weight of authority in this country is to the effect that a party cannot discredit his own witness by statements claimed to be at variance with his testimony, but this rule has its exceptions. (2 Met'c. [Ky.] 17; 1 Browne, [Pa.] 176.) In the case at bar the latter doctrine commends itself to the favorable consideration of the court. While in a great measure the conduct of the examination of witnesses must be left to the discretion of the court and its ruling under the circumstances, yet it seems to us that taking into account the nature of the case, the intimacy disclosed as existing between the plaintiff and the witness as shown by her testimon y the evident hostility of the witness to the defendant in this case, and the alacrity with which the witness displayed her bias and prejudice in favor of plaintiff, all tended to show that the truth could not be extracted in any other way than by showing her declarations made at.a time when there could have existed no incentive to mendacity. The necessity of the cases that have been tried has in England resulted in the following provision in the Common-Law Procedure, § 22, [quoted in the opinion, infra.] See Jacob Fisher’s Digest, 5098. The duty of examining counsel is here pointed out, and this was the course offered to be pursued, but the court ruled that the objection made by counsel below should be sustained. And of this we complain, although the code of Kansas has no similar provision to that above cited. The cardinal feature of our code is to assist the parties in obtaining justice. The spirit controlling the practice of law under the code is, and of right ought to be, in harmony with that object. We cannot conceive of an instance in which a more flagrant injustice could be perpetrated by the sustaining of an objection, and we think it at least an abuse of discretion which is a manifest error in this case. 5. [Counsel’s review of the evidence, omitted.] We now have the testimony of nine witnesses, all of them contradicting the statement of the plaintiff as to the engagement between herself and the defendant. It was in view of this testimony, in which the mass and preponderance were in favor of the defendant, that the court was called upon to review on a motion for a new trial the sufficiency and preponderance of the evidence. In support of the motion for a new trial, the case of Williams v. Townsend, 15 Kas. 564, was cited; but the court overruled the motion, flatly refusing to weigh the evidence in the cause. This was error. This court has laid down certain salutary rules as to the duties of the trial court in relation to setting aside the verdict as against the evidence. The trial court is bound to examine and determine, on the motion for a new. trial, the sufficiency of the evidence in the case. If the court had doné so in this case, the verdict would have been set aside. The rule laid down by the court in this case, is the rule which obtains in the supreme court, that where there is any evidence to sustain the verdict, the supreme court will not interfere with the finding of the court below. This application of the rule we think is error. And where the court below has failed to consider the question of the preponderance of the evidence, the verdict should not be sustained. It is undeniable' that the trial court held its duty done when it saw there was some evidence to sustain the verdict. In fact, it ruled that the supreme court had stated the duty of the trial court too strongly in Williams v. Townsend, supra. In this case the most cursory review of the evidence shows how imperative it was for the court below to have considered the evidence adduced, and to have seen where the preponderance lay. In shutting its eyes to the question presented, the court seriously erred. It is claimed that the charge authorizing the jury to take into consideration, in support of the express promise, the facts and circumstances accompanying the acquaintance of the parties, their visits, etc., is erroneous within the decision in Walmsley v. Bobinson, 63 111. 41. A careful examination of that case, however, leads to an opposite conclusion. There, the jury were authorized to find the promise, from the facts and circumstances detailed. Here, they were told that they might consider them in corroboration of the express promise sworn to. Manifestly this is correct. (12 Reporter, 93.) The defendant asked for an instruction based upon certain statements attributed to the plaintiff concerning a mythical person named Artz. As requested, the instruction would certainly have misled or at least mystified the jury. Whatever there was about this man Artz, was before the jury, among the “facts and circumstances” concerning which, as we have seen, the jury were already instructed. But it contains a manifest error, for even though the plaintiff was engaged tp another, if the defendant, knowing that fact, (as he now claims,) still promised to marry her, he must be held liable for his default. Besides, it clearly appears from the despositions of both parties, that no such person was in existence. This Artz matter was a collateral issue, brought into the case by the defendant as a sort of counter-irritant. The suggestion that persons engaged, but not to each other, may fairly be presumed to treat each other with greater freedom than they otherwise would, is certainly an unsound proposition in law and morals. The ruling upon the testimony of the witness Jane Hedges is correct. Indeed, this is admitted to be so under the general rule, but it is claimed that an exception ought to have been made in this case. No surprise, accident, or other reason to take this case out of the admitted.rule, is suggested; but it is in effect’argued that in order to do justice .in this particular trial, a rule of evidence well known and long established ought to have been set aside. It is safer to follow the “ old paths.” Finally, the broad claim is made that the preponderance of the evidence is with the defendant, and for that reason the verdict ought to have been set aside. It is argued that the facts are first to be passed upon by the jury, and next by the court; that the revision by .the court is not to be confined to the question whether the verdict is supported by legal evidence, and is free from frahd, but to ascertain where the preponderance of the evidence, in the judge’s opinion, rests. That is, that the judge, as to all questions of fact, is an appellate tribunal, whose jurisdiction may be invoked by a motion for a new trial; and this startling proposition, it is claimed, is supported by the decisions of this court. We hope it is not. Now to all this, we make two answers: First, the preponderance of the evidence is not with the defendant, unless it can be affirmed that a qualified and equivocal denial preponderates against a clear, straightforward and unequivocal affirmation. Here is not only the engagement and promise sworn to, but all the incidents of courtship clearly stated. The defendant says in substance: “Yes, I paid these attentions, and at one time we talked of marriage, but that was broken off. True, I continued my visits as before, but it was because you asked me to.” When we reflect that this was between a girl of sixteen and an experienced business man of forty, the absurdity of the defendant’s claim is the more apparent. Again, the positive statements of the plaintiff, as we have seen, are supported by the evidence of the defendant’s express admissions, as well as his deliberate and long-continued course of conduct. And if anything further were needed, it was supplied by numerous witnesses called by the defendant himself, showing that the prospective wedding of these parties was a matter of neighborhood talk. The young people of the plaintiff’s acquaintance often asked her when the marriage was to come off, and similar questions; and one gossippy old lady undertook to provoke her jealousy by pointing out her affianced in company with another lady, saying, “There goes Alf. and his new girl.” The witness said she did this “ to see how Ella would take it.” Another witness, who seems to have been “going somewheres,” overtook Ella on the road, and although an entire stranger, forthwith asked her “when that wedding was coming off.” Manifestly the defendant must have made his love affairs quite conspicuous, and his attentions very marked indeed, or he could not so easily supply the witness stand by the young and old of both sexes, so well posted upon this long-expected wedding in high life in Peoria.’ And yet it is seriously contended that, because this young girl, exercising the'usual grace of maidenly modesty, answered these busybodies with evasion and denial, she is to be deemed as admitting that no marriage engagement subsisted! We do not insist that this court shall take judicial notice of the habits and inclinations of young people under similar circumstances, but we do say that the common knowledge of human nature which everybody may be presumed to possess clearly shows that what are called admissions on her part are only the natural expression of maidenly reserve,-secreting from too-familiar eyes the sacred affairs of the heart which other people had no business with; and even though she carried, these evasions to the verge of falsehood, it is only what has been done by the sex in numberless instances. Counsel ought to remember that young girls do not usually parade the country with the legend, “I am engaged,” bound upon their foreheads, even though old bachelors, exhilarated and softened by the smiles of their betrothed, may be eager to publish the fact. It is claimed further, that after Mr. Johnson had in fact married another, Miss Ella denied that “Alf.” had ever asked her hand. Suppose she did. ■She was being teased about his “going back” on her. She was smarting under a sense of cruel wrong, and being taunted by others upon her discomfiture, sought refuge in a denial. Shall this be held an admission? The above are fair samples of the so-called admissions of the defendant; and yet it is chiefly ■upon such testimony that the court below was asked to find that the verdict was contrary to the evidence. Second, if there was proper and material evidence tending to prove the issue on the plaintiff's part, and. the jury, without fraud or mistake, were fairly convinced by it, as shown by their verdict, then their conclusion is final, no matter what the judges may think as to the mere preponderance of evidence. The practice contended for would overthrow trial by jury, or make the jury at best the mere adviser of the court. It would subvert a provision of the constitution, and in effect repeal a clause of the code. (Bill of Eights, § 5; Code, § 266.) Manifestly these provisions do not mean a mere preliminary trial, but a final determination of the issues, subject only to the proper revision of the court when their verdict was not sustained by the evidence, or where through fraud or mistake they have manifestly misapplied it. This case is clearly within the rule laid down by this court. (17 Kas. 145.) Counsel say the court “ flatly refused to weigh the evidence.” We do not so understand it. Its judgment was appealed to by a motion for a new trial, and by argument thereon, and its judgment sustained the verdict. The denial of the motion, in the language of this court in the case just cited, “must be taken as the certificate of the trial court that the verdict is either fully in' accord with its belief upon the testimony, or else that there was such a fair and reasonable doubt as to the weight of the evidence, pro and con, that honest and intelligent minds might differ,” and that therefore “the verdict must be accepted as just.” Certainly any remark made by the judge in deciding the motion, made, as we may fairly suppose, to soothe 'the excited feelings of the losing party, cannot be considered against the legally-expressed judgment of the court — even if the remark has any proper place in the record, which we doubt.