
    No. 489
    HEACOCK v. BYERS
    Ohio Appeals, 2nd Dist., Franklin County
    No. 1097.
    Decided June 23, 1924
    748. MARRIAGE PROMISE — 1. In an action for breach of, an allegation in the petition of sexual relations between the parties is improper, as it tends to aggravate damages, and it is error, on motion, to refuse to strike it out.
    2. Evidence of such sexual relations is admissible if limited to the question whether a contract existed.
    Attorneys — W. H. Jones, for Heacock; Robert J. B.eatty, Perry A. Roach and T. B. Mateer, for Byers; all of Columbus.
   BY THE COURT:

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action for breach of marriage contract wherein Delta M. Beyers was plaintiff and Preston W. Heacock was defendant. The petition alleged that in contemplation of a subsequent marriage the parties indulged in sexual relations with each other during a period of five years. Defendant filed a motion for non-suit on the ground of this allegation or in lieu of that, that the allegation be struck out of the petition. The motion was overruled. At the trial evidence of such sexual relationship was introduced. The court charged the jury that this evidence might be considered for the purpose of reflecting upon the question as to whether a marriage contract actually existed and that it should be disregarded as an element of damages. The jury rendered a verdict for plaintiff for $10,000 and this amount was reduced by remittur to $3,000, for which judgment was entered. Hea-coc’k prosecuted error. Held by the Court of Appeals:

The motion for non-suit was properly overruled for the reason that the action for breach of promise as to legitimate damages would not be overthrown because of the sexual reía-tionship which might have existed. The motion to strike out the allegation should have been sustained because while seduction may be alleged and proven, in a breach of promise suit, in aggravation of damages, the aver-ments in the petition did not make out a case of seduction, and the law does not favor illicit relations and would not countenance the allegation and proof thereof as an aggravation of damages. But the failure to strike out the allegation depends upon its effect at the trial.

Evidence of relationship was properly admitted in corroboration of plaintiff’s testimony as to the marriage contract. The charge of ¿he court as to this evidence rendered the ob-Bbctionable averments in the petition nonprejudicial so far as the court could do so at that stage of the case. But since the objee. tionable averments were carried along in the case down to the charge of the court, the original verdict must have been based upon bias and prejudice to a considerable extent. The remittur, though proper, did not cure the error and the trial court should have granted a new trial. Judgment reversed.  