
    Charles J. Goodall v. Lavina Thurman.
    1. Marriage Contract. When void or -voidable. A promise of marriage made in consideration of illicit intercourse is void, and cannot he enforced. If the plaintiff is delivered of a child after the promise, not begotten by the defendant, or if the defendant supposed that the plaintiff was modest and chaste, and it turned out she was not, he would not be liable for a breach of his promise to marry her.
    2. Same. Evidence. Seduction. Under the general issue, in an action for a breach of a marriage contract, the plaintiff may give in evidence, in aggravation of damages, that she was seduced and got with child by the defendant.
    3. Same. Same. Damages. In an action for a breach of promise of marriage, the damages to be recovered are in the sound discretion of the jury under the circumstances surrounding the case. They are to look to the rank and condition of the parties, the estate of the defendant, and to all facts proven in the cause, and award damages commensurate with the injury inflicted.
    
      i. Circuit Court. Charge to the jury. The instructions of the Court to thejuryshould.be confined to the case made out in the proof, otherwise the jury might be misled by an abstract principle, which, though correct, has no application to the facts proved; but if there is testimony tending to raise the question, it is not the province of the Court to determine whether it is sufficient. The Court should state the law, and leave to the jury the determination of the effect of the evidence.
    5. Hew Trial. Excessive damages. In trials at common law, the jury are the proper judges of damages; and where there is no certain measure of damages, the Court will not, ordinarily, disturb their verdict, unless on grounds of prejudice, passion, or corruption in the jury.
    6. Same. Relationship of a juror. A relationship by affinity is dissolved by the death of the party, by a marriage with whom, the relationship was created. Hence, a juror whose wife is dead is competent, although by his marriage he was related to one of the parties to the suit within the prohibited degree.
    EROM SUMNER.
    Yerdict and judgment at tbe October Term, 1858, for $5,000. Motion for a new trial overruled, TurNER, J., presiding. The defendant appealed.
    Head & Turner, and Bennett, for the plaintiff in error.
    J. J. White, for the plaintiff in error,
    argued j
    1. The damages are excessive. It will not do, in our sympathies for the sex, to make no distinction be~ tween women, and to place the impure and vicious upon a level with the .purest and most exalted. The proof shows, that if the defendant' in error was not actually a courtesan, her conduct was such as to invite improper approaches; and that it was so doubtful, both in regard to the contract of marriage and the paternity of the child, it was not a case for exemplary damages.
    2. The Court erred in the charge to the jury. He first supposes a case without evidence to support it, which is, in effect, an inflammatory appeal to the jury. But, 2d, according to a high authority, (2 Greenleaf on Ev., see. 256,) the damages to be recovered must always be the natural and proximate consequence of the act complained of. He says, “ it has been held, that in assumpsit for breach of a promise to marry, evidence of ^eduction is not admissible in aggravation of damages,” and quotes several authorities. It is true, in 2 Tennessee Reports, 234, the law is intimated differently; but the authority in Greenleaf would • seem to be right upon principle, for this seduction and illicit intercourse' does not naturally flow from a promise to marry, but it is an independent, vicious act on the part of both. The law makes the father responsible for the support of the child; but it does not itend to pay her on that .account. To do so would be to encourage licentiousness and reward vice. Hence it is that the mere fact of a female having an illegitimate child affords her no ground for an action. To couple it then with another matter which does, as a breach of promise to marry, cannot change .the principle in her favor. 2 Bibb, 341, JBarJces v. Shain.
    
    We think the Court likewise erred in telling the jury to “inquire not what defendant can pay, but what ■the plaintiff ought to receive.” If the defendant had a large estate, that might be shown to increase the damages. If he is worth nothing, would not that diminish them?
    The importance and novelty of the case are reasons for granting a new trial, as said by the Court in the case of Abbott v. Sealer, 3 Johns. Cases, 39. Suits of this kind have been rarely brought in this State, and, therefore, the law has not been well considered here im regard to them.
    Guild, for the defendant in error.
    Baxtee, Smith, for the defendant in error;
    said r
    It is insisted by the .plaintiff in error, that a new trial should have been granted him upon the ground! that James Q-win, a member of the jury, was connected by affinity to the defendant in error, within the degree-that would render him incompetent as a juror, computing according to the rule of the civil law. This might have been urged as an objection to the juror’s competency when he was first called; but as no such objection was then made, and the question of his relationship was not put to him, it is too late to rely upon this ground for a new trial after the verdict has been rendered. It is submitted, that a presumption legitimately arises, as nothing was said about it when the jury was made up, that the objection to the competency of this juror was waived, if any existed, or that the parties consented that the juror might act. The act of Assembly declaring persons related within the sixth degree, by afSnity or consanguinity, incompetent to act as jurors in any case, provides that the parties to the suit may waive any objection to such incompetency. Code, sec. 4003. If any such connexion ever existed between tho defendant in error and this juror, as to render the latter incompetent to set as a juror in the case of the former; we contend that such connexion had been broken by the death of the juror’s wife, and his subsequent marriage. The reason of the rule in such case ceasés then to exist, for in a majority of cases, as the experience of the world goes, a party’s feelings are more likely to be adverse than too ¡jartial to his or her con-nexions by a former marriage. This objection is certainly a “nice and formal one, which does not go to the real merits of the case,” and for such, a new trial will not be granted. Bl. Com. B., 3 marg.,. page, 392.
    2. There is no error in the charge of the Court, .n an action for a breach of a promise of marriage, evidence may be given of tbe defendant’s impregnating the woman, in aggravation of damages. 2 Tenn. R., 233.
    3. This being a civil action for damages, the Court will not disturb the verdict of the jury on the ground of excessive damages, unless they are “ flagrantly outrageous and extravagant, evincing intemperance, passion, partiality or corruption, such. as all mankind would at once pronounce unreasonable.” Boyers v.. Pratt, 1 Hum., 93. It will scarcely be contended that the damages in this case evince any such conduct or feelings upon the part of the jury.
    The damages are within the sound discretion of the jury, under the circumstances of each particular case. Southard v. Pexford, 6 Cowan, 254.
    Can it be, that the poor are not as chaste as the rich ?
   CaRuthbes, J.,

delivered the opinion of the Court.

This action was for breach of a contract to marry, and the recovery was for $5,000 damages.

It is insisted that the damages are excessive, and so we think; but whether to that extent which would, under the rules on that subject, authorize us to reverse on that ground alone, is a different question. There are some cases in which the engagement to marry is used for the basest purposes, by unprincipled men, and in these, the damages cannot well be too heavy. In this case, proof was admitted tending to show that the defendant succeeded in the seduction of the plaintiff by the confidence inspired in that way. She was certainly delivered of an illegitimate child, which she charges upon him, and insists that she was induced to surrender her virtue in consequence of his reiterated assurances, that he would comply with his ' contract to marry her. This is the position assumed in the argument upon the circumstances proved.

But a question of law is here made, as to the admissibility of evidence of seduction in a suit for breach of a contract to marry. The Court below admitted it, in aggravation of damages. To show this was error, we are referred to a passage in 2 Greenleaf on Ev., sec. 256, where, in illustration of the rule, that the damages to be given must be the natural and proximate consequence of the act complained of, he says, “it has been held that, in assumpsit for breach of a promise to marry, evidence of seduction is not admissible in aggravation of damages,” with a reference to cases.

The contrary was settled in Conn v. Wilson, 2 Tenn. R., 234, as early as 1814. The Court say, “the cases referred to in 8 Mass. R., 71 and 189 demonstrate, that it was proper to receive this evidence in aggravation of damages. * * * Morality requires it in order to repress the libidinous advances of the male sex, under dishonest and seductive assurances of marriage.” We are not aware that this decision has ever been departed from, in practice, by our Courts. Whatever the opinions of elementary writers, or the Courts of other States may be, that is our law, and we are not disposed to change it. A promise to marry is not unfrequently one of the base and wicked tricks of the wily seducer to accomplish his purposes, by overcoming that resistance which female virtue makes to his unholy designs. Whenever seduction follows an engagement to marry, it may well be asserted that the promise, on the part of the man, was intended to cover his designs upon her virtue, by winning her affections and confidence. The fact that the hypocritical suitor is prepared to destroy her character, shows, conclusively, that it was not his intention to make her his wife. His success in the destruction of his victim, is, generally, the result or consequence of his engagement to marry. This injury, then, is sufficiently proximate to be taken into the account in estimating the damages in a suit of this description.

We fully concur with his honor, in that part of his charge to which objection is made, to the effect, that if the jury “ believed from the testimony in the cause, that the defendant entered into a marriage contract with the plaintiff, and that he resorted to the contract as a means of debauching and seducing her, and for the purpose of gratifying his lustful and brutal passions, then the jury should give to the plaintiff exemplary and substantial damages.”

Where no other injury follows a breach of this contract but disappointed hopes and the mortification of rejected love, the measure of damages would be different, because honor and chastity are still left, and the injury may be repaired. But when all is lost, happiness, honor, character, a ease is certainly made for “ exemplary and substantial damages.” That the parent has an action for damages in this last case, can make no difference as to the amount' of compensation to which the sufferer is entitled.

It is objected, that there was no proof in the canse to which this strong proposition in the charge could apply. If so, it was improper, as the charge should be confined to the case made out in the proof, and the jury might, as argued, be misled by an abstract principle, though correct, which had no application to the facts in proof. But if there was testimony tending to raise the question, and this cannot be disputed, it was not for the Court to determine whether it was sufficient or not; it was proper to leave that to the jury, and declare the effect in law if established to their satisfaction. He did nothing more.

It is contended, that as the defendant was poor, it was erroneous in the Court to charge, as he did, that the jury could not look in the assessment of damages, to .his ability to pay. The charge on this point, was, “that the damages to be recovered are in the sound discretion of the jury, under the circumstances surrounding the case. The jury, in assessing damages, are to inquire, not what the defendant can pay, but what the plaintiff ought to recover. They may look to the rank and condition of the defendant.” A man’s poverty certainly should not secure him from damages commensurate with the injury inflicted. It is enough that they cannot be collected when recovered. The charge would, perhaps, have been more full and accurate to have made some reference to the estate of defendant, as a matter to be looked to in the discretion of the jury, but error cannot be predicated of this omission.

There is proof in this record very seriously impeaching the character of the plaintiff, for want of prudence and proper female modesty in her intercourse with men; and so is ber sister Martha, the main witness in proving the contract as well as the seduction, convicted of many contradictions and inconsistencies; but on the other hand, they are well sustained in their character and reputation by many reputable witnesses. All these matters have been passed upon by the jury, and they have in their verdict fully vindicated them, and it is not for us to say that their conclusions were wrong.

But amidst the doubts and difficulties in the proof as to the contract itself, and the paternity of the child, we think the verdict was a very strong one. It is right, in this kind of cases, to lay a heavy hand upon the foul and deliberate betrayer of a worthy woman’s confidence; but there may be danger of going so far as to hold out a temptation to an unprincipled woman to seek her fortune by the too easy surrender of her honor, or to avenge imagined wrongs. The best interests of society, and public policy, as well as the cause of morality, may be put in jeopardy by either extreme. Though it is generally true, yet not always so, that the fault is entirely on the side of the man in these unfortunate occurrences. There may be danger, unless a wise discrimination is observed by juries and Courts, between the cases, in reference to the character of the parties and the attending circumstances, of holding out a bribe in these large verdict's, to the wicked and unprincipled to entrap unwary youth, and tempt the incautious and unsuspecting. ■

After all, we do not feel authorized to grant a new trial in this case upon the single ground of excessive damages, although we consider the amount entirely disproportionate to the case made out in the proof. The law on this subject is correctly laid down in 2 Greenleaf, see. 255: “In. trials at common law, the jury are tbe proper judges of damages; and where there is no certain measure of damages, the Court, ordinarily, will not disturb their verdict, unless on grounds of prejudice, passion, or corruption in the jury.” To this rule we have conformed our practice, and it is the only safe one on the subject.

The Court, in his charge, gave the defendant the advantage of every principle of law applicable to the facts proved, that could absolve him from the obligation of his contract. He told them that if the promise was made in consideration of illicit intercourse; if the plaintiff was delivered of a child, after the promise, of which he was not the father; if he supposed her to be modest and chaste, and it turned out she was not, he would not be liable for a breach of his contract to marry her.

It is enough to say, in reference to the affidavits offered on the motion for a new trial, that there is nothing in them to authorize it. The principle point is, that it is made to appear by the affidavit of one of the jurymen, that he was related within the prohibited degree, by affinity, to the plaintiff. But his wife was long before dead, and that dissolved the relationship, and removed the disability. Independent of this, it was perhaps too late then to make the question.

We are constrained to affirm the judgment.  