Hasted v. Van Wagnen , 243 Mich. 350 ( 1928 )

The declaration avers breach of marriage promise aggravated by seduction and pregnancy. The grievances are also pleaded separately. Plaintiff had verdict and judgment for $10,000 and defendant brings error.

According to the testimony of plaintiff and her witnesses, the parties on December 25, 1925, made mutual contract to marry. Defendant then was 21 years old and plaintiff was 19. And such testimony sets forth breach of marriage promise, seduction, pregnancy, and the birth of a child. Defendant testifying admitted sexual intercourse and denied promise of marriage.

1. The first question is that the court erred in submitting to the jury breach of marriage promise and seduction as separate causes of action for the reason that seduction could be shown and relied upon only in aggravation of damages in the action for breach of promise, citing Sheahan v. Barry, 27 Mich. 217, and Roberts v. Druillard, 123 Mich. 286. A sufficient answer to this is that defendant's requests to charge are framed on the theory of two counts in the declaration, one on breach of promise to marry, the other on seduction, and defendant requested instruction respecting both counts. Defendant may not complain if the court followed his requests.

2. The jury were instructed that if they found for plaintiff she was entitled to damages including "exemplary damages." When breach of marriage promise is aggravated by a seduction and childbirth the case is one calling for exemplary damages. See notes and cases cited 41 L.R.A. (N.S.) 841. That the court did not define exemplary damages is not here important. They are intended only as compensatory for a wanton aggravation of injury. Boydan v. Haberstumpf, 129 Mich. 137. The court after stating at length the elements of damages said:

"These elements of damages are not capable of exact measure, but are left wholly to your sound discretion."

A like charge respecting damages including exemplary damages was approved by this court in Raynor v. Nims, 37 Mich. 34 (26 Am. Rep. 493). And in determining exemplary damages it is no objection that the jury must consider some of the same elements that have already been considered in fixing the so-called actual damages. Ross v. Leggett, 61 Mich. 445 (1 Am. St. Rep. 608). We find here no reversible error in the court's instructions relative to damages.

3. The damages awarded are liberal in view of the fact that defendant is of little or no financial worth. But they are not disproportioned to the injury received by plaintiff, nor are they flagrantly excessive. We find nothing to indicate that the verdict was influenced by prejudice or passion, that it is based on anything but evidence. There being no precise rule of damages in a case like this, their assessment is peculiarly within the province of the jury. The trial judge thought the verdict not excessive. We are constrained to agree with him.Hickey v. Kimball, 109 Me. 433 (84 A. 943); 9 C. J. p. 383;Fishleigh v. Railway, 205 Mich. 145.

Other assignments of error relating chiefly to the charge have been considered and need not be discussed. We find no reversible error.

Judgment affirmed.

FEAD, C.J., and NORTH, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred.