Brownell v. McEwen , 5 Denio 367 ( 1848 )

By the Court, Whittlesey, J.

To succeed in this application the defendant must show affirmatively that there was improper evidence submitted to the jury on the part of the plaintiff, which was objected to by the defendant. Upon comparing all the affidavits I have come to the conclusion that the only interrogatory put by the plaintiff’s counsel in regard to this point was whether the defendant had said any thing to the witness, who was the female who had been seduced, on the subject of marriage, before October when the intercourse commenced. This was objected to, but before the objection was disposed of, the witness answered, Yes. The defendant’s counsel then took up the inquiry on a cross-examination to ascertain what was said about a premise of marriage, and then drew out all that was sworn to on that subject; which, perhaps, does not amount to a promise of marriage.

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. (Foster v. Scoffield, 1 John. R. 297; Clark v. Fitch, 2 Wend. 459; Tullidge v. Wade, 3 Wils. R. 18.) It is, however, competent to show that the defendant paid the daughter such attentions as are usual when the addresses are of an honorable character ; (Clark v. Fitch, supra; Elliot v. Nicklin, 5 Price, 641;) and it is usual to give such evidence to show the character of the affair, and that she did not readily yield to the arts of the seducer. All these are proper circumstances to show, in an action in which damages are given as a reparation to the injured honor and injured feelings of the father, rather than for the mere technical loss of the daughter’s services. The inquiry therefore which was actually put, asking if the defendant said any thing on the subject of marriage previous to the seduction, may amount only to an inquiry whether he made honorable proposals. And when the answer is limited simply to a naked affirmative or negative, the evidence does not seem to be objectionable. An affirmative answer gives the jury no information of what was said about marriage; and if the defendant chooses on a cross-examination to inquire further into it, supposing he may be able to repel the inference of an actual promise of marriage, he must stand by the results of such an experiment.

Some of the jurors make affidavits that they agreed to the verdict rendered, on the supposition and under the impression that it would settle the whole matter, the seduction, breach of promise, and all other suits growing out of the seduction. Others of them swear that their consent to the verdict was not influenced by any such consideration, and that they did not take into account any promise of marriage, or have any reference to it in making up their verdict. I think it is going too far to admit an affidavit of an individual juror shewing what circumstances operated upon his mind to assent to the verdict which he joined in rendering. It would be a dangerous precedent, and is not, I think, warranted by any of the cases on the subject. If it was discussed in the jury room among themselves, and agreed among them after such discussion, that damages for the breach of promise of márriage were to be included in their verdict, that would be a recognized fact upon which all the jury acted, and it might be competent for any one of them to make affidavit of it. But to allow each juror to disclose what influence weighed upon his , own mind in making up his verdict, cannot be tolerated. (The People v. Columbia C. P. 1 Wend. 297; Ex parte Caykendoll, 6 Cowen, 53; Sargent v. , 5 id. 121.) The motion must be denied.

Motion denied.