Opinion
November 13, 1924.
John D. Lyons [ Isidor Enselman and Ralph F. Kane of counsel], for the appellant.
Meyer A. Novick, for the respondent.
The complaint alleges that the defendant made the acquaintance of the plaintiff in the month of June, 1922; that he ingratiated himself in her favor by diverse acts and artifices; that in the evening of the 4th day of June, 1922, about nine o'clock, the defendant invited the plaintiff to take a ride in an automobile; that while the parties were sitting in the automobile in a secluded spot, the defendant ardently expressed his love to the plaintiff and promised to marry her at the first opportunity; that relying upon said protestations of love and the promise of marriage made, the plaintiff, at the special instance and request of the defendant, had intercourse with the defendant and yielded up her virtue; that the defendant thereafter failed to carry out his promise to marry the plaintiff; that as a result of the act of sexual intercourse the plaintiff suffered bodily pain and mental anguish. The plaintiff testified that while on the evening of the fourth of June the automobile was proceeding to the secluded spot described the following conversation occurred: "Q. What did he say? A. He said he would like to marry me. Q. And what did you say to him? A. Well, I didn't know what to say; I loved him; I was undecided, but I did not think I knew him long enough." Arrived at the secluded spot the following occurred: "He twisted my arms behind and he pulled me down and I lifted myself and I tried to throw myself out of the machine, and I could not, and he said `Don't bother; you might as well come through with it.' He says `I will marry you; I will do the right thing by you;' and that it did not make any difference. `If you love me you will do it,' and I objected, and I objected, and I did not want to do it. Q. What did he do? A. He got a hold of my leg and he pulled me down on the seat and he got on top of me. Q. What else did he do? A. Well, you know what he did." It is highly probable that the witness meant that the parties indulged in sexual intercourse. It will be observed that the complaint is devoid of any allegation, and the record is devoid of proof that the plaintiff upon any occasion whatsoever promised to marry the defendant, or inferentially or otherwise accepted his offer of marriage. On the contrary, the proof shows that as the parties journeyed to the secluded spot the plaintiff, after the defendant's offer of marriage, was undecided about accepting it, since her acquaintance with the defendant did not justify her in the belief that she had known him long enough. Moreover, when the interesting event was about to occur, the plaintiff "objected," and "objected," and "did not want to do it." Thus it appears not only that there was no promise of marriage on the part of the plaintiff to support the offer of marriage made by the defendant, but also that the plaintiff gave to the defendant no quid pro quo whatsoever for his promise, since what he received was not voluntarily given, but was forcibly taken. Even had it been otherwise an act of sexual intercourse by itself would not constitute a sufficient consideration to support a promise of marriage. It is true that there is proof of a promise made by the plaintiff after the fourth day of June. That proof, however, cannot save the verdict which the plaintiff has recovered. In the first place, the promise proven is not the promise set up in the complaint. In the second place, the act of sexual intercourse took place before a binding promise of marriage had been made. It could not properly be used, therefore, to enhance the damages resulting from a breach of the promise.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.