(on petition for rehearing). In law there is many a slip which leads to oppression and robbery. This case will serve as an example. According to the decision, it seems the action is based on slips — mere slips — made by the defendant — on slips by his attorneys — on slips by the officers of the law — on slips by the courts— and for such slips, defendant must pay from his hard earnings, $6,000.
This appeal is from a judgment for $6,000, for a breach' of promise. On the pleadings, this case appears to be an action for malicious prosecution, but such were the slips of the law, and the cunning of counsel, that on the testimony, and the argument of the case, it became a second action for a breach of promise. In the first action for breach of promise, plaintiff recovered $6,000, which defendant paid, and in this action, for the same identical cause.
There is a judgment against him for another $6,000. It appears that for twenty year’s prior to the commencement of the action, the plaintiff passed the greater part of her time as the housekeeper and mistress of defendant. Then he married another woman and the plaintiff brought suit for a breach of promise and recovered $6,000, which defendant paid. That was his penance; that was in full settlement of the love affairs, but like a crazy woman, she went to the house of her former lover, cut up the furniture, and turned the house into a nuisance, and wrote scandalous and unprintable letters to the young wife. For that insane procedure, she was arrested on the charge of insanity. The charge was made on the advice of the sheriff, who went to the house of defendant, saw the depredations and declared that no sane woman would be guilty of such conduct. The other officers of the law agreed with him, and so defendant was arrested and was in the custody of the sheriff four days and then discharged. Then this action was commenced, to recover damages for the arrest, but on the trial, it was conducted from start to finish as if it were an action for a breach of promise, and so the first judgment was duplicated. The transcript of the testimony covers 360 typewritten pages, and nearly all pertain to the twenty years of illicit love, and the breach of promise. Defendant was first called as a witness for cross-examination. *63His testimony covers 80 pages. It all relates to tbe story of illicit love. Of course it was all given under objections. It served no purpose only to present a false issue and to influence tbe minds of the jurors, and so when the case was reargued before this court, counsel for plaintiff dilated on all the details of the illicit love just as though it were a breach of promise case, and of course he argued the case in the same way before the jury. There is not in the case a word of testimony in any way tending to show any feud, malice, or ill-feeling between the parties, until the commencement of the depredations and the commencement of the suit for breach of promise. That was the cut-off. There we must draw the line. All testimony regarding prior-friendly relations was clearly irrelevant and prejudicial. It had not the least tendency to prove malice. It was not offered for the purpose of proving malice. It was offered only to prejudice the jury. That is clear and manifest. The argument was not on damages by reason of arrest, in fact, she was in no manner abused or ill-treated, or damaged. Part of the time, her son of twenty-seven years was her custodian and jailer. Her actual damages amounted to practically nothing. In fact, there is good reason for believing that the arrest was beneficial. It seemed to have brought her to her senses and to have made her ashamed of her disgraceful and nefarious conduct.
Now counsel for defendant moved for a rehearing on two principal grounds:
(1) Because of error in the admission of the mass of irrelevant testimony;
(2) Because of excessive damages given under the influence of passion and prejudice.
In denying a rehearing not a word is said concerning the excessive damages and no attempt is made to justify the admission of the mass of irrelevant testimony. It is true that in the original opinion several eases axe cited to sustain such testimony, but in the motion for rehearing, it is shown that the cases cited have no relevancy. This is probably the first case in all the law books where a verdict has been sustained when based on such a mass of prejudicial and irrelevant testimony. As shown in the petition for rehearing, the only purpose of such love testimony was to inflame and prejudice the minds of the juries and to appeal to their passion and prejudice. Very much do I *64regret the, decision and the order denying a rehearing. It virtually gives the plaintiff a reward of $6,000 for the commission of a gross-misdemeanor. I cannot but regard it as a gross miscarriage of justice. I hope it may show the pressing necessity for amending the law in regard to such cases, and in regard to the contingent fees of attorneys. In such a case, the attorney who works for a contingent fee of 50 per cent should be made a party to the action and not permitted to pose as a disinterested minister of justice, - and his fees should be limited to a reasonable percentage of the amount recovered.