The opinion of the court was delivered by
Brewer, J.:
This was an action instituted in the district court of Franklin county by the defendant in error against the pláintiff in error, to recover damages, on account of a breach of promise of marriage. The verdict and judgment were in favor of the plaintiff for $1,250, and defendant now brings the case here for review. The errors alleged are in the giving of one instruction, the refusal of two, a single ruling on the admission of evidence, and that the verdict was contrary to the evidence. The testimony discloses that the defendant was a man about forty-five years of age at the time of this alleged promise of marriage; that plaintiff was about eighteen years of age. The defendant had been living in the town of Peoria, in Franklin county, for several years. The plaintiff moved there with her mother sometime in 1876, and lived until the fall of 1879 in a house belonging to the estate of the defendant’s father, and of which he had the care. The contract is alleged to have been made sometime in' March or April, 1879, and the time set for their marriage was in the following November. It appears that the defendant waited on the plaintiff from about the time of-her removal to Peoria until 'November, 1879, at which time he was married to one Miss Florence Cary. The fact of [601] these attentions — that he visited plaintiff, escorted her to church, to balls and parties, is admitted by him, but the frequency of these visits and the extent to which these attentions were paid is a matter about .which the testimony is somewhat conflicting. The plaintiff testifies distinctly to an engagement of marriage in the spring of 1879. The defendant as positively denies any such engagement, though he admits that in 1877 there was some talk between them about the possibility of marriage. Besides the positive statements of the two principal parties, there was on each side the testimony of several witnesses as to the conduct of the two parties, their apparent relation, and statements respecting the same made by each. Upon this testimony we shall have more to say hereafter. Now the first error complained of is, that the court gave this instruction :
“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 in fact entered into, you will be authorized to find for the plaintiff.”
1. Instruction, not error. The case of Walmsley v. Robinson, 63 Ill. 41, is cited by plaintiff in error as an authority to show that this instruction is incorrect. "We think that authority is not in point, and that the instruction as given is correct. . In that case, under the instruction the jury were authorized to find the promise fr°m the conduct of the parties, while here they were simply told that they* might consider such cpnduct in corroboration of the promise testified to by the plaintiff. Clearly this is correct. .The conduct of the parties will always make for or against the'statement of either that a marriage contract has been entered into. If the parties never visit, seldom meet, manifest no interest in each other, such circumstance3 will tend strongly against the-claim of either of the fact of a marriage contract. While on the other hand, [602] if he is constant in his visits, pays the ordinary attentions of a suitor, frequently escorts her, and in various ways manifests a peculiar interest in her welfare, these are circumstances which clearly corroborate and tend to support her assertion of an actual marriage contract. This is the extent to which the instruction goes, and to that extent we think is a correct statement of the law.
Plaintiff further objects that the court erred in refusing to give the two following instructions:
“If the plaintiff stated to the defendant, or to others who repeated her statement 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.”
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The opinion of the court was delivered by
Brewer, J.:
This was an action instituted in the district court of Franklin county by the defendant in error against the pláintiff in error, to recover damages, on account of a breach of promise of marriage. The verdict and judgment were in favor of the plaintiff for $1,250, and defendant now brings the case here for review. The errors alleged are in the giving of one instruction, the refusal of two, a single ruling on the admission of evidence, and that the verdict was contrary to the evidence. The testimony discloses that the defendant was a man about forty-five years of age at the time of this alleged promise of marriage; that plaintiff was about eighteen years of age. The defendant had been living in the town of Peoria, in Franklin county, for several years. The plaintiff moved there with her mother sometime in 1876, and lived until the fall of 1879 in a house belonging to the estate of the defendant’s father, and of which he had the care. The contract is alleged to have been made sometime in' March or April, 1879, and the time set for their marriage was in the following November. It appears that the defendant waited on the plaintiff from about the time of-her removal to Peoria until 'November, 1879, at which time he was married to one Miss Florence Cary. The fact of [601] these attentions — that he visited plaintiff, escorted her to church, to balls and parties, is admitted by him, but the frequency of these visits and the extent to which these attentions were paid is a matter about .which the testimony is somewhat conflicting. The plaintiff testifies distinctly to an engagement of marriage in the spring of 1879. The defendant as positively denies any such engagement, though he admits that in 1877 there was some talk between them about the possibility of marriage. Besides the positive statements of the two principal parties, there was on each side the testimony of several witnesses as to the conduct of the two parties, their apparent relation, and statements respecting the same made by each. Upon this testimony we shall have more to say hereafter. Now the first error complained of is, that the court gave this instruction :
“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 in fact entered into, you will be authorized to find for the plaintiff.”
1. Instruction, not error. The case of Walmsley v. Robinson, 63 Ill. 41, is cited by plaintiff in error as an authority to show that this instruction is incorrect. "We think that authority is not in point, and that the instruction as given is correct. . In that case, under the instruction the jury were authorized to find the promise fr°m the conduct of the parties, while here they were simply told that they* might consider such cpnduct in corroboration of the promise testified to by the plaintiff. Clearly this is correct. .The conduct of the parties will always make for or against the'statement of either that a marriage contract has been entered into. If the parties never visit, seldom meet, manifest no interest in each other, such circumstance3 will tend strongly against the-claim of either of the fact of a marriage contract. While on the other hand, [602] if he is constant in his visits, pays the ordinary attentions of a suitor, frequently escorts her, and in various ways manifests a peculiar interest in her welfare, these are circumstances which clearly corroborate and tend to support her assertion of an actual marriage contract. This is the extent to which the instruction goes, and to that extent we think is a correct statement of the law.
Plaintiff further objects that the court erred in refusing to give the two following instructions:
“If the plaintiff stated to the defendant, or to others who repeated her statement 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.”
In explanation of these instructions, it may be stated that the defendant claimed that plaintiff said to him that she was ■engaged to a man named Artz, who lived in Illinois, in the place where the plaintiff formerly resided, and in corroboration thereof that he had at her request directed several letters to a man of that name. There was similar testimony of other witnesses in reference to her statements. On the other hand, •she offered the depositions of sundry witnesses, as well as her own testimony, that this whole matter of another engagement to a man named Artz or anyone else was a myth. Now the ■counsel for plaintiff in error argue very strongly, that if defendant believed plaintiff to be a young lady already engaged to be married to a gentleman residing in a distant place, he might feel at greater liberty to pay her attentions — doing so not as a suitor, or with any idea of interfering with the existing engagement, but simply as perceiving her to be a young lady so situated as not likely to receive attentions from the young unmarried gentlemen in the vicinity; and that as the jury had been instructed that the fact of these attentions was [603] matter to be considered in corroboration of the alleged engagement, they ought also to have been told to consider the explanation given by him;'and further, that attentions which a gentleman might properly pay to a lady already engaged, were not to be considered as tending to prove or corroborate a contract of marriage. We think there is great force in the argument made by counsel, that the court might properly have given the instructions asked; and yet the question as it comes before us is not whether it- would have been error to have given those instructions, but whether it was error to refuse them. Oftentimes instructions are perfectly proper, and the giving of them involves no error, yet at the same time the refusal to give them is also no error. Particularly is this true as to instructions respecting the tendency and effect of certain portions of the testimony. It would sometimes tend to embarrass and perplex a jury, hinder rather than assist them in arriving at the exact truth, if the court were to take the different portions of the evidence and give special instructions as to their tendency and effect. So also at times very slight action on the part of the court makes undue impression on the jury, and casts the weight of the court’s- supposed opinion into the jury’s decision upon a doubtful and disputed question of fact. In the case at bar the plaintiff asked no special instructions, and the only ones-asked by the defendant 'were the. two above quoted and refused. In its general instructions the court sufficiently and very fairly presented the questions of fact for the determination of the jury. It stated to them that the plaintiff’s cause of action rested upon proof of a marriage contract; that the plaintiff positively testified to such a contract; that the defendant as positively denied it. Then it gave the instruction' heretofore quoted, of which the defendant complains —an instruction which, as we think, was proper under the circumstances of the case.
It then followed with this instruction ón behalf of the defendant :
“On the other hand, you may look to the denial of the de[604] fendant, and to the facts testified to by the witnesses in the case in support of his denial; and if from all ‘the evidence,, the facts and circumstances testified to by the witnesses, including the testimony of the defendant, you are not satisfied that a contract of marriage did exist between the parties as claimed by the plaintiff, it is your duty to find for the defendant.”
2. Instructions, which might heve given, refusal of. Not only did it thus place the case of the plaintiff' over against that of the defendant, but it followed these instructions by limiting their inquiry to the existence of the express contract made in March or April, as testified to by the plaintiff; and told the jury that the plaintiff must stand or fall by this contract, and that all other testimony offered by her was simply to be considered as . tending to corroborate her evidence of such a contract. It further stated to the jury that they were exclusive judges of the weight to be given to-the testimony, and to each and every part thereof, and fully indicated to them their duty in respect to weighing and analyzing the testimony. Now it seems to us that the court having once stated the distinct question of fact to be passed' upon by the jury, and indicated to them in a general way the-matters outside the positive testimony of the two parties-which it was their duty to consider, and also their functions in weighing and passing upon the testimony offered, it cannot be held that the court erred in failing to give the special instructions asked by the defendant. We have hesitated, as heretofore intimated, not a little upon this question. If we thought that the instruction implied, as counsel for plaintiff in error contend, that greater freedom or familiarity of intercourse was proper between two unmarried persons of opposite sexes whenever each is under engagement of marriage to another party, we should unhesitatingly sustain the ruling of the district court. We cannot think that the instruction justly carries such an intimation. All we think that it implies is, that a gentleman may pay ordinary civihties to a young lady recently moving to hiS' community, whom he supposes to be already engaged, without thereby laying the foundation for the imputation of a marriage contract between himself [605] and the lady. In short, we think the instructions asked might properly have been given, and yet we are constrained to hold that the failure to give them was not under the circumstances such an error as justifies a reversal of the judgment.
In reference to the single ruling upon the testimony, the facts are, that the defendant called a witness, a young lady, who testified, to conversations with the plaintiff which tended to support her claim of a marriage contract. It was evidently a surprise to the defendant, who had been led to suppose from the witness’s statements to another party, that the plaintiff in her conversations with the witness had denied the existence of the contract; and he sought to impeach the witness, by proof that she had stated to such third party that the plaintiff had in conversations with her, substantially negatived the existence of any marriage contract with the defendant. The court declined to hear this.testimony, holding apparently that as the witness was produced by the defendant, he must take •her testimony for what it was worth, and could not thereafter impeach his own witness. That this is the general doctrine, •counsel for plaintiff in error do not question; but they contend that this rule is not absolute and imperative, and that there are circumstances in which a party may fairly impeach his own witness. They cite in support thereof, the provision in the new common-law procedure of England, act of 1854, '§ 22, which reads as follows:
“A party producing a ^witness shall not be allowed to impeach his credit by general evidence of bad character, but he may in case the witness shall in. the opinion of the judge prove adverse, contradict him by other evidence; or by leave of the judge, prove that he has made at other times a different statement, inconsistent with his present testimony. But before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”
[606] 3. Impeachment of witness; rule; exception. [605] We think that, independent of any special statutory provision, the matter is left largely within the discretion of the [606] trial court; that that court may, when it thinks the interests of justice require, permit a party to show that he is unexpectedly mistaken in the testimony of any witness; that he had good reason to expect other testimony, and what such other testimony would be. But being a matter so largely within the discretion of the trial court, we ought not to reverse a judgment on account of its ruling, unless it is very clear that the party complaining has sustained- substantial wrong thereby. Now in the case at bar, the testimony expected from the witness was a statement of the plaintiff in disavowal of any engagement; her testimony in fact was of statements of the plaintiff supporting such an engagement. As several witnesses were introduced who testified to statements of plaintiff substantially in disavowal of any engagement, and as this witness stood in no such relation to the plaintiff as would justify an expectation that to her alone rather than to others plaintiff would state the exact truth of her relationship to the defendant, we cannot think that the court abused its discretion in refusing to permit the defendant to impeach her testimony. If the witness was one who was supposed to be personally cognizant to any contract, or one whose relations to the plaintiff were such that she might be the special confidant of the plaintiff, perhaps the decision might be different, but under the circumstances we think there was no such abuse of discretion as justifies any interference with the judgment.
[607] 4. Verdict, when set aside— when not. [606] The final matter complained of is, that the verdict is against the evidence. Counsel contend that the large preponderance of the testimony was with the defendant, and that the trial court disregarded its duty as heretofore announced by this court, and practically declined to express any opinion as to the weight of the,evidence. We must disagree with counsel upon both propositions; so far from thinking it clear that the preponderance of the testimony was with the defendant, to say the least there was a very doubtful question of fact. The plaintiff swore positively one way, the defendant the other. For aught we can perceive, one party was as fully entitled to [607] credence as the other. The plaintiff was supported by very strong testimony on the part of her mother, by the testimony of her step-father, by the general conduct of the defendant, and by the statements of defendant as disclosed by some of the witnesses. On the other hand, the defendant, admitting that there was at one time some talk of marriage between himself and plaintiff, but denying positively any marriage engagement, is supported almost alone by evidence of contradictory statements made by her. It is true, there were a number of these in which either indirectly or directly plaintiff disavowed any engagement with plaintiff, and talked of another engagement with a party in Illinois. In reference to this testimony, counsel for plaintiff well say that a young lady who is engaged to be married does not generally seek, to advertise the fact, and that when teased or quizzed about the matter is very apt to answer by evasions and sometimes by denial. There is a maidenly modesty which seeks to keep such matters secret from the public gaze, and which often prompts the party, when persistently questioned, into positive denial. We cannot ignore the fact, and it serves to explain and interpret many of the denials testified to by witnesses, so that as we read the testimony through it seems to us there was fairly presented to the jury a doubtful question of fact, one upon which their verdict must necessarily be conclusive. This is all that we think the district court meant in announcing its decision. We do not understand that it is the duty of the trial court, where a doubtful question of fact exists, to disturb the verdict of the jury simply because its judgment inclines the other way. The case » ^ ° J of Williams v. Townsend, 15 Kas. 564, carries no such intimation. The jury are the triers of the fact, and while it is the duty of the district court to interfere, yet as stated in that case, it is only when they have manifestly mistaken the evidence, and where the verdict is manifestly erroneous. Where the question is absolutely doubtful, where some men would naturally come to one conclusion and others to the opposite, then the verdict of the jury is conclusive. They [608] are the triers of the fact, and although the judgment of the court may incline against the verdict of the jury, yet it ought not to interfere. Its duty of interference arises only when the jury have manifestly mistaken the testimony, when the verdict is manifestly against the evidence. Then, as we have repeatedly said, it is its duty to interfere; and if it sustains the verdict, we take it in this court, no matter how weak the testimony seems to be, as reduced to writing and incorporated in the record, that really as heard by the jury and the court and compared with the testimony on the other side and weighed by the apparent credibility of the respective witnesses, it was sufficient to sustain' the verdict. Taking the whole record through, it does not seem to us that if we had occupied the position of trial judge we should have disturbed the verdict. It was a determination by the proper tribunal of what evidently was a doubtful question of fact. Because it was unnecessary, we have not considered the question raised by counsel as to the sufficiency of the record. We have assumed it to be sufficient; and except for the second question heretofore noticed, we should unhesitatingly, and with that we do hesitatingly, sustain the verdict and the judgment.
The judgment of the district court will be affirmed.
All the Justices concurring.