
    Just Doubet v. Bonnie Kirkman.
    1. Evidence—Questions by court discrediting witness.—Where in advance of the cross-examination by counsel which was then regularly in order, the court propounded questions upon matters personal to the witness, and many of them by their form manifesting,' at least, a strong suspicion of his truthfulness, and his testimony was important to the defendant, as well upon the issue made between the parties as in mitigation of damages. Held, that it was erroneous to discredit the witness before the jury by such an intimation of the opinion of the court.
    2. Breach oe promise—Evidence as to engagement.—In a breach of promise case, the proof of an actual engagement by the plaintiff to marry another, subsisting at the time of defendant’s attentions to plaintiff, will not, as matter of law, overcome the inference of a like'engagement to the defendant furnished by attentions, though such engagement is proper to be considered by the jury as tending to overcome it. The modification of the instruction in this casé is erroneous, for although the hypothesis that plaintiff was a woman of loose and bad habits might justify defendant in refusing to fulfill his promise, if any had been made, it would have no effect upon the operation of the evidence referred to as overcoming or tending to overcome the inference that might otherwise be drawn from the attentions mentioned.
    3. Character oe plaintiff—Damages.—In a breach of promise case it is proper to instruct the jury to take into consideration the character and habits of the plaintiff in estimating the damages, and that no person addicted to lewdness and unchaste conduct ought to recover as much as a moral and virtuous person, and this is unaffected by the general merits or demerits of the defendant.
    
      Appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Opinion filed January 16, 1885.
    Tliis was an action of assumpsit by appellee against appellant, upon an alleged promise of marriage, for damages sustained by its breach and aggravated by seduction.
    On the trial at the May term, 1883, upon issue joined on a plea of non-assumpsit, she testified that she xvas nearly twenty-two years of age; that she had been married when about fifteen to Augustus Opie, lived with him something over two years, bore him a son, still living, and obtained a divorce with leave to resume her maiden name at May term, 1879; that she resided with her parents in Peoria, and defendant on a farm a few miles away; that he began to keep her company in the spring of 1880, visiting her regularly every other Sunday until the following fall, during which time they became engaged to marry; that in the fall his visits ceased for reasons unknown to her (though they continued to meet occasionall}1) until about the middle of November, 1881, when they were renewed, and the engagement was renewed to be consummated in the fall of 1882; that yielding to his wishes she had sexual intercourse with him on three occasions—a week before Christmas, on Christmas evening and about a week later— induced thereto by the consideration of their engagement, and of his further promise, made on each of said occasions, that if pregnancy should result he would marry her at once; that in consequence of this intercourse she did become pregnant, of which she informed him about the last of January, 1882; that he thereupon advised her to procure an abortion, referring her to two parties who he said would perform the operation, and promising to bear the expense; that having applied to one and been refused, she declined to proceed further in that direction; that he then ceased to visit her, and although often requested, refused to fulfill his promise, absolutely and in terms of uncommon heartlessness, saying he had got out of her all that he wanted; that her child was born Sept. 20, 1882. A direct question by the judge elicited the further statement that he never assigned to her any other reason for his refusal than the one above set forth, or made any complaint against her.
    There was no other direct proof of a promise to marry, but her parents and other witnesses testified to circumstances tending to corroborate her statement of it, and the facts of ■sexual intercourse and its fruit were not disputed.
    Defendant, as a witness on his own behalf, positively denied that he ever promised to marry her, and sought to overcome any inference that might otherwise be drawn from such attention, as he was shown to have paid her by proof of her admission that during the period of the alleged engagement to him she was engaged to another, and also of her conduct toward young men, so free and inviting as to account for his visits on other grounds than an inclination to marry her, and at least to mitigate the damages in case she should recover.
    The first, and perhaps the principal witness, called by the defendant for this purpose, was one. Charles A. Kretbaum, who testified in chief that in the fall of 1881 he visited the plaintiff once or twice, and sometimes thrice a week, during a period of six weeks, when, as she said, she was engaged to marry the defendant; that she generally “ caressed ” him when he called; that on two occasions she exposed her leg as high as-the knee; that she allowed him to take and wear the engagement ring, which she said the defendant had given her, and that she told the witness in terms that she wanted to marry him. His last statement in chief was: “ She used to kiss me very often, and put her arms around my neck, and kiss me in that way—nothing further than that.”
    Immediately thereupon, before cross-examination by plaintiff’s attorney, the judge proceeded to question the witness as follows:
    By the Court. You was unapproachable, I suppose, any further than that? You would not yield to any blandishments?
    (Objected to. Defendant then and there excepted.) Ho.
    What was your age at that time? (Objected to. Defendant then and there excepted.) Twenty-one years.
    In good health were you? (Objected to. Defendant then and there excepted.) Yes, sir.
    
      Where were you from when you came here? Havana, Illinois.
    How long did you live there? (Objected to. Defendant then and there excepted.) I left there in 1868.
    Where did you come from when you came there? (Objected to. Defendant then and there excepted.) Game from near Lewistown, .Fulton county; lived in the county then; born near Lewistown, Fulton count)-", this State.
    You never was married, I suppose? (Objected to. Defendant then and there excepted.) Ho, sir.
    Didn’t want to get married? (Objected to. Defendant then and there excepted.) Ho, I can’t say that I ever did.
    What did you say to her when she wanted to marry you? (Objected to. Defendant then and there excepted.) I told her I didn’t want her.
    Didn’t want her? Ho, sir.
    How often did you go there after that? (Objected to. Defendant then and there excepted.) Hot many times after that.
    You quit pretty soon, did you? Yes, sir.
    Did that frighten you away or not? (Objected to. Defendant then and there excepted.) Don’t know that it did. Didn’t care about going there any longer.
    Yon was too modest, I suppose. Was you? (Objected to. Defendant then and there excepted.) May be.
    That was it, was it? (Objected to. Defendant then and there excepted.) Yes, sir.
    Did you publish this everywhere—what took place there? I did not
    You told nobody ? (Objected to.) May have told intimate friends; that was probably all.
    Your intimate friends? (Objected to. Defendant then'and there excepted.) Yes, sir.
    Ilow generally did you publish it? (Objected to. Defendant then and there excepted.) Well, not to many, probably to two or three of my friends.
    What friends? (Objected to. Defendant then and there excepted.) Young men that work in the shop where I do.
    
      Did you remonstrate against her approaches—did you oppose it? (Objected to. Defendant then and there excepted.) Sometimes and sometimes not.
    You were horrified at it, I suppose. Was you horrified at it? (Objected to. Defendant then and there excepted.) Yes, sir.
    Or did yon submit? Yes, sir. Some parts I was; some parts I was not.
    Told her so, did you not? (Objected to. Defendant then and there excepted.) Don’t remember.
    You don’t remember? Ho, sir.
    She just voluntarily did all that you have stated, did she, without anything further? (Objected to. Defendant then and there excepted.) Can’t say she did. Probably I encouraged her a little.
    Encouraged her, how? (Objected to. Defendant then and there excepted.) In my own way—caressed her.
    What did you say to her? What inducements did you hold out to her that she asked you to marry her? (Objected to. Defendant then and there excepted.) Don’t know as any at all.
    Hothing at all? Ho, sir; don’t know that I did.
    Hothing except your general address to her, I suppose?
    Yes, sir.
    That was all, was it? (Objected to. Defendant then and there excepted.) So far as I remember.
    By Mr. Foster.—We object to every question and answer.
    I would like to have these objections considered in this examination, to each question and answer.
    By the Court.—-What is the objection?
    By Mr. Foster.—The objection is, that I think they are improper.
    Bv the Conrt.—In what respect?
    By Mr. .Foster.—I don’t think the court should go into it to this extent.
    By the Court.—Why so?
    By Mr. Foster’.—It is simply my idea.
    By the Court.—You ought to have some reason for it. I am asking proper questions to elicit the truth. I mean to get the truth. I don’t wish to make any remarks about it at all.
    By the Court.—You are of French descent, are you? FTo, sir.
    What is your native country ? My parents were German.
    From Germany? Yes, sir.
    The defendant asked, among others, the following instructions, without the parts italicized, which the court added:
    6. You are further instructed that while a contract to marry between the parties to this suit may be inferred from unusual and marked attentions and continued intimacy, and those manifestations of attachment and regard which usually precede marriage, yet such inference will be overcome by actual proof that the plaintiff herein was, during the time of the alleged engagement by plaintiff to marry defendant, actually engaged to be married to a person other than the defendant, if such other engagement tooht place after the engagement to the defendant, or during the time of such engagement with defendant, so as to amou/nt to a repudiation of the contract with defendant, or amount to an abandonment of such contract whilst it was in force or before any refusal to ferform by defendant, if he did refuse.
    
    9. You are further instructed that if no express promise of marriage has been proved, then it can only be inferred from circumstances, and if the jury believes, from the evidence, that the plaintiff was a woman of loose and bad habits and accustomed to committing acts of michastity, and that the defendant knew and believed the plaintiff to be such a woman when he went to see her, and while he continued to visit her, then the jury should take all these things into consideration and judge from a review of all the evidence whether the defendant visited the plaintiff with the purpose of marrying her or for some other purpose, and if they believe he visited her for some other purpose than that of marrying her, then the jury ought not to infer any agreement to marry her from any such attentions alone which he may have paid her under such circumstances, if he did not malte such promise with ahcnowl
      
      edge and acquiescence in her conducty but if he Jenew of hej misconduct or unehastity and acquiesced therein at the time of the promise he can not avoid his contracts on that account.
    
    10. You are further instructed that in estimating the damages, if any are proven, you should take into consideration the character and habits of the plaintiff, if proven, and if you believe, from the evidence, that she was addicted to lewdness and unchaste conduct, these circumstances should be considered, and no person guilty of such practices ought to recover as much damages as a pure, moral and virtuous person, if the jury believe the character of plaintiff renders her unfit to be his {defendant’s) wife.
    
    A verdict having been returned for the plaintiff for $875, which the court refused to set aside, the defendant appealed.
    Mr. James H. Cameron and Mr. Daniel R. Si-ieen, for appellant;
    cited Lycan v. The People, 107 Ill. 428; Burnett v. Simpkins, 24 Ill. 266.
    Mr. Isaac C. Edwards, for appellee;
    as to the rights of the court to examine a witness, cited Penn. C. Co. v. Conlan, 101 Ill. 109; Beasley v. The People, 89 Ill. 580; Skelly v. Boland, 78 Ill. 439; Foreman v. Baldwin, 24 Ill. 306; Rogers v. The People, 98 Ill. 581.
   Per Curiam.

The examination by the judge of the witness Iu'etbaum, was objectionable in respect to its time, its substance and its form. It was clearly uncalled for in advance of the cross-examination by counsel, which was then regularly in order and might well have been expected to occupy the same line of interrogation. The questions were directed to matters personal to the witness, and many of them, by their force, manifested at least a strong suspicion of his truthfulness. And since his testimony was important to the defendant, as well upon the issue made between the parties as in mitigation of damages, it was both erroneous and hurtful to discredit him before the jury by such an intimation of the opinion of the court. Lycan v. The People, 107 Ill. 428.

We do not hold, as a matter of law, that the proof of an actual engagement by plaintiff to marry another, subsisting at the time of defendant’s attentions to her, will overcome the evidence of a like engagement to him furnished by those attentions, since there might be in fact a co temperan eons engagement to two or more, though it is proper to he considered by the jury as tending to overcome it, and therefore it was proper to modify the 6th instruction asked by the defendant. But the modification made, instead of correcting the error, added to it; for although the hypothesis presented by it might justify the defendant in refusing to fulfill his promise if any had been made, it would have no effect .upon the operation of the evidence referred to, as overcoming or tending to overcome the inference that might otherwise be drawn from the attentions mentioned. It was therefore not germane to the subject-matter of the instruction as asked, and if intelligible at all, was calculated to confuse the minds of the jurors. It also assumes an engagement by defendant to plaintiff, which was the principal fact in issue between the parties, and to which, as being disputed, the instruction directed—thus further showing that it was in no just sense a modification of the instruction but a departure from it.

The addition to the 9th, as asked, is subject to the same criticism.

The 10th, as asked, was held to be good in Barnett v. Simpkins, 24th Ill. 265, and we hold it to be so, absolutely, and unaffected by the general merits or demerits of the defendant. Its modification was therefore erroneous.

For these reasons the judgment must be reversed and the cause remanded.

Reversed and remanded.  