The verdict of the jury establishes the making and breach of the contract of marriage; and, there being no exception to the charge upon the merits, we must assume that the same was, in every respect, proper and satisfactory to the parties, except upon the single point relating to the damages, upon which there was taken a specific exception. The defendant had, in his answer, spread upon the record as a defence to the action, that the plaintiff, at the time of the making of the said alleged promise of marriage was, and still was, a common prostitute, and then, and still was of bad character, an unchaste woman, and had, and has illicit intercourse with various persons. This is a very serious, and, if untrue and unfounded, a most wanton and wicked charge. And yet, if the defendant had promised to marry the plaintiff, and was, at the time, in entire ignorance of her true character, it was a defence to the action, if proved, and would justify his refusal to perform his contract with her; otherwise, it was simply a matter in mitigation of damages.
The charge appears to have been entirely unproved at the trial, and it does not distinctly appear whether proof of it was, or was not attempted; but the defendant would clearly have been entitled to prove it, if he had been able to do so. In the absence of such proof, therefore, of this most injurious and calumnious charge, made upon the record against this plaintiff, the question for the decision of this court is, whether the jury were entitled to consider the fact that such charge had been made, and thus spread upon the record, and whether the judge might properly suggest to them that they had a right to take this circumstance into consideration, in aggravation of the damages to which the plaintiff was entitled. The case of Southard v. Rexford (6 Cowen), is an express authority in favor of the correctness of the charge made by the learned circuit judge. This case was tried by the late Chancellor WALWORTH, then one of the circuit judges, who instructed the jury in a like case, that, in cases of this kind, the damages are always in the discretion of the jury, and in fixing the amount, they have a right to take into consideration the *Page 481 nature of the defence set up by the defendant; that, in his defence, he had sought to excuse his abandonment of the plaintiff, on the ground that she was unchaste; that, with such a defence on the record, a verdict for nominal damages might be worse than a general verdict for the defendant; and that, where such a defence was spread upon the record for the purpose of destroying her character, the jury would be justified in giving exemplary damages." The court in bank, upon a motion for a new trial, affirmed this ruling at the circuit, Judge SUTHERLAND saying: "That where the defendant attempts to justify his breach of his promise of marriage, by stating upon the record, as the cause of his desertion, that she had had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the damages." This court, also, in Kniffin v. McConnell (30 N.Y., 288), has substantially approved of this case of Southard v. Rexford, and affirmed this same rule, in respect to the question of damages in actions of this kind. In this case of Kniffin v.McConnell, the allegation of unchastity on the part of the plaintiff was not set up in the answer, and proof of it was not, for that reason, admitted as a defence at the trial; but the proof tending to establish such fact was admitted in mitigation of damages.
The proof having been thus received, the circuit judge, in his charge to the jury, among other things, said to them in respect to such proof, that "if the defendant had come into court and attempted to prove her guilty of misconduct with other men, of which he knew she was not guilty, or when the misconduct was committed with himself, it aggravates the injury and aggravates the claim to damages." That case was tried by me at the circuit, and this charge was made upon the principle that the jury, in such cases, were entitled, when they found the contract of marriage made and broken, to take into consideration all the facts and circumstances of the case, and the conduct of both parties toward each other, and particularly the conduct of the defendant, in his whole intercourse *Page 482 with, and treatment of the plaintiff, in connection with the making and breach of the contract, and afterward up to and including the defence and trial of the action; and that, among other facts, it was a legitimate subject for their consideration, if the fact was so, that he not only had abandoned her and trifled with her affections, but had sought to disgrace her and ruin her character. This court virtually adopted the same view of the case. In the opinion of Judge INGRAHAM, who gave the opinion of the court, he assented to the correctness of the rule on this subject as asserted in Southard v. Rexford, and only doubted the correctness of the charge on the ground that the proofs were not given to sustain any allegation upon the record. He says, referring to that case: "The rule is undoubtedly founded upon the fact, that the justification is placed upon the record, and that it will ever remain there as a reiteration of the charge against the plaintiff; and with such an answer on the record, a trifling verdict would show that such charge was not unfounded. The same rule applies in actions of libel and slander; but I have not seen any case where the rule has been extended beyond a justification on the record;" and, further, he says: "Certainly the rule should be extended no further than the case of Southard v. Rexford has carried it, and when it is not made part of the record." Although the proof in that case had been given and received for the benefit and at the instance of the defendant, and in mitigation of damages, and against the plaintiff's objection and exception, yet, because there was no allegation on the record to warrant it, the learned judge thought the defendant's exception to the charge relating to such proof a valid one, for the simple reason that the allegation to warrant it was not upon the record. A majority of the court differed with him on that point; but the case, upon the view of the learned judge himself, is entirely in point in favor of the instructions given by the judge, at the circuit, in this case. These cases rest upon the principle which, I think, is well established in this State: that the action for the breach of the contract of marriage, though in form of *Page 483 an action of assumpsit, is, in fact, and always has been since it was sustained at common law, in respect to this question of damages, really in the nature of an action for a tort. Damages in this action have never been limited to the simple rule governing actions upon simple contracts for the payment of money. This court asserted a different rule in the case of Johnson v.Jenkins (24 N.Y., 252). In this case, which was an action like this, for a breach of promise to marry, the judge at the circuit had charged, that the action was of a class of cases for which the law allows what are called aggravated damages, that is damages beyond, and in no way measured by, any proof of actual pecuniary loss or injury." Judge ALLEN said, in respect to this charge: "By this, I understand that the jury was told, that in this class of actions, as in libel, slander, seduction, criminal conversation, etc., they are at liberty to give what are termed punitive damages, as distinguished from compensatory damages;" and referred to the case of Hunt v. Burnet (19 N.Y., 173), and to Keezeler v. Thompson, therein referred to and affirmed. The learned judge also said: "That damages in this class of cases may be enhanced by such facts and circumstances as aggravated the injury itself, as adding to the indignity and contumely, increasing mental agony, and bringing public disgrace and consequent loss of reputation upon the injured party." This rule clearly covers and justifies the charge given in this case. I think the charge entirely correct, and that the judgment below should be affirmed.
All concur for affirmance. Judgment affirmed. *Page 484