Colburn v. Marble

82 N.E. 28, 196 Mass. 376

• Court: Massachusetts Supreme Judicial Court
• Decided: October 16, 1907
• Status: Published

Opinion

Sheldon, J.

In our opinion the plaintiff ought not to have been allowed to prove in rebuttal her good reputation for chastity. The general principle is that in civil actions evidence of character or reputation is not admissible for the purpose of meeting evidence of specific acts of misconduct. Day v. Ross, 154 Mass. 13. Cases in which the character of the plaintiff is put directly in issue, as in slander or libel, or in which evidence of general reputation may be received as bearing upon a question of notice or of probable cause, are not really exceptions to the rule. This rule is clearly stated, with a full citation of authorities, in Geary v. Stevenson, 169 Mass. 23, 31. It was applied to an action for breach of promise of marriage, by the Supreme Court of Pennsylvania, in Lecky v. Bloser, 24 Penn. St. 401. It has been applied in England to the analogous case of an action by a parent for the seduction of a daughter. Bamfield v. Massey, 1 Campb. 460. Dodd v. Norris, 3 Campb. 519. The defendant merely had attempted to show specific acts of unchastity on the part of the plaintiff; he had not, by attacking her reputation, opened the field to her to offer evidence to support it, as in Smith v. Hall, 69 Conn. 651. So far as the decisions in some other States go beyond the doctrine here adopted we do not regard them as sound. The defendant’s ¿exception upon this subject must be sustained.

The defendant also offered to prove certain instances of immodest and indecent conduct of the plaintiff in 1902, prior to his alleged promise, together with evidence that he did not learn of these things until 1906, and that he then ceased his relations with her. This evidence, so far as it did not tend to show actual unchastity on her part, was excluded; and the defendant’s exception to this ruling raises the next question to be considered.

There is much authority for saying that the defendant had the right to show, if he could do so, that the plaintiff’s reputation for chastity was bad before the making of his promise. Boynton v. Kellogg, 3 Mass. 189. Woodard v. Bellamy, 2 Root, 354. Von Storch v. Griffin, 77 Penn. St. 504. Capehart v. Carradine, 4 Strob. 42. Morgan v. Yarborough, 5 La. Ann. 316. Burnett v. Simpkins, 24 Ill. 264. Butler v. Eschleman, 18 Ill. 44. Denslow v. Van Horn, 16 Iowa, 476. Stewart v. Smith, 92 Wis. 76. Kantzler v. Grant, 2 Ill. App. 236. But the evidence offered by the defendant could not have been admitted upon that ground; for it is settled in this Commonwealth that character is not to be shown by evidence of specific acts, but only by evidence of reputation. McCarty v. Coffin, 157 Mass. 478. Miller v. Curtis, 158 Mass. 127, 131, and cases there cited. There is nothing inconsistent with this in Sullivan v. Lowell & Dracut Railway, 162 Mass. 536; and the rule as to human beings is recognized in Palmer v. Coyle, 187 Mass. 136, 139.

Actual unchastity, either before or after the making of a promise of marriage, if there has been no waiver of the objection, will justify a defendant in breaking the engagement for that reason. Young v. Murphy, 3 Bing. N. C. 54. Irving v. Greenwood, 1 C. & P. 350. Bench v. Merrick, 1 Car. & K. 463. Snowman v. Wardwell, 32 Maine, 275. Foster v. Hanchett, 68 Vt. 319. But these and the many other decisions which might be cited to the same effect do not help the defendant; for he was allowed to offer testimony of this kind, and none of the offers which were excluded went further than the claim that the plaintiff’s actions had been immodest and indecent; Fry v. Leslie, 87 Va. 269; and conduct of this kind prior to the engagement never has been held to justify a breach of promise. Indeed, the mere fact that the plaintiff in a suit like this has in some respects violated the criminal law would not be enough for this purpose. Berry v. Bakeman, 44 Maine, 164.

The defendant however contends that the evidence was competent in mitigation of damages ; and it has been held in some other States that indelicate, immodest, or indecent conduct on the part of the plaintiff in a suit of this character, though not amounting to actual unchastity, is yet to be considered by the jury in assessing damages. Palmer v. Andrews, 7 Wend. 142. Stewart v. Smith, 92 Wis. 76. Stratton v. Dole, 45 Neb. 472. And in Boynton v. Kellogg, 3 Mass. 189, the defendant was allowed at the trial to give in evidence any instances of misconduct and even of indelicacy in the plaintiff; but the decision of the full court was only that the defendant could not prove in mitigation of damages the plaintiff’s general bad character after the promise and before the breach. The somewhat broader. statements of this decision made in Butler v. Eschleman, 18 Ill. 44, and in the dissenting opinion of Davies, J. in Johnson v. Jenkins, 24 N. Y. 252, 258, are not to be supported.

The argument on which these cases were decided seems to have been that a woman of loose conversation and immodest demeanor would suffer less from a breach of an engagement to marry than one of purer mind and more reserved bearing; a supposition which we think it would be difficult to justify. And it is not without significance that these decisions were made in States in which exemplary or vindictive damages are allowed in some instances to be given; and there was perhaps greater reason for allowing it to be shown that the plaintiff’s conduct had not been morally blameless than would be the case in this Commonwealth", where no greater damages can be given than a compensation for the injury actually sustained. Nor does the argument seem to go further than to leave it to the jury to say what damages should be given to a woman of the character such as they might find to be indicated by what was shown to have been her conduct.' But if this is so, the evidence of her specific actions would be material only as throwing light upon her character; and we have already seen that in this Commonwealth, although a different rule prevails in some other States, character can be proved only by evidence of reputation.

Accordingly we find no error in the rulings refusing to admit the evidence which has been spoken of.

Nor has the defendant any right of exception to the ruling refusing to allow him to testify that it was because of what Wilson told him that he stopped going to the plaintiff’s house. It may be that the question which he put was excluded by reason of its form; and the defendant at the argument before us waived his exception to the exclusion of a similar question put in a correct form. But we are of opinion that the evidence was incompetent in substance. The defendant’s contention was that what Wilson told him included all the matters which had previously been excluded, and which we already have seen were incompetent. It may be granted that the defendant in a suit like this may show in defence that he broke off the contract to marry by reason of material misconduct in the other party. Sheahan v. Barry, 27 Mich. 217. Snowman v. Wardwell, 32 Maine, 275. Espy v. Jones, 37 Ala. 379. But this did not entitle the defendant either to introduce incompetent evidence under the guise of showing the reason for his acts, or to show that he had broken off his relations with the plaintiff for reasons which did not justify him in so doing. As most of the matters communicated to him by Wilson were incompetent and could not themselves be testified to, it was immaterial whether his conduct was based upon them. He was permitted to testify to all that he did after this conversation, and that under the circumstances was all that he was entitled to. Moreover, even if it could be supposed that what he did .was based wholly on material misconduct by the plaintiff, the most that he could have testified to upon his. story would have been that he himself ceased committing fornication with the plaintiff because Wilson told him that she had previously committed the same offence with some one else. This reason could not have fitted any claim of his so as to constitute a defence. Nor could the jury have disconnected this alleged reason from the setting in which the defendant would have used it, and attached it to an entirely different set of facts, the very existence of which the defendant denied. The defendant’s state of mind could have applied to the facts only as he then understood them to be; it might or might not have been his state of mind upon other and different facts. Accordingly, the evidence rightly was excluded.

The judge ruled that if the plaintiff was guilty of unchastity before the defendant’s promise to her, and did not inform him and he did not know of it until after action brought, the verdict must be for him. This was correct. The judge also added at the request of the plaintiff that “ mere silence on her part, without inquiry by him, though resulting in the concealment of matters which would have broken the engagement if known, would not constitute fraud on her part”; and the defendant excepted to this. But this too was correct. Van Houten v. Morse, 162 Mass. 414, 416. The parties have argued the case as if this amounted to a withdrawal of the ruling first made; and, if that were so, it would be erroneous for the reasons heretofore stated. But we do not so understand it. And the further ruling given, that if the defendant abandoned the plaintiff “ for any reason other than her fornication with another, such fornication would now be no defence to this action, even though he wojild have been justified at the time of such abandonment in breaking his promise by reason of such fornication if he had then known of it,” although supported by Sheahan v. Barry, 27 Mich. 217, was erroneous, so far as it applied to any act of fornication which was not then known to him, and which accordingly he could not be said to have waived. The true rule was that which had been previously stated to the jury. But the defendant has not suffered by this error; for he relied only upon the testimony concerning the plaintiff’s condition in September, 1903, which the jury must have found to have been due to the defendant himself, and upon his claim relative to Martin, which the jury have expressly negatived.

The defendant also excepted to the judge’s refusal to instruct the jury that evidence of fornication on the part of the plaintiff could be considered in mitigation of damages. But this request was too broad. It included fornication committed with the defendant, and so could not have been given. Espy v. Jones, 37 Ala. 379. Johnson v. Smith, 3 Pittsb. 184. Nor, for the reasons above stated, has the defendant suffered by its not having been given.

The exception to the refusal of the judge to define the word “ seduced,” as requested by the defendant, has not been argued and we treat it as waived.

Exceptions sustained.