APPEAL from the Circuit Court of De Kalb County; the Hon. MEL
ABRAHAMSON, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This cause comes here on direct appeal from a judgment of the circuit court of De Kalb County sustaining appellee's motion to dismiss an amended complaint for breach of promise, and from a judgment entered upon the counts so dismissed, upon which appellant elected to stand.
The said amended complaint consisted of three counts. The first count alleged the promise to marry and the date the ceremony was to be performed; that confiding in said promise the plaintiff has remained unmarried and is still ready and willing to marry the defendant, but that defendant refused and continues to refuse to marry the plaintiff, and that plaintiff did send a notice to the defendant stating these facts in compliance with the statute relating to breach of promise, to plaintiff's damage in the sum of $20,000.
Count 11 realleged all of the allegations of count 1 and further alleged, in paragraph 5 thereof, that after the exchange of mutual promises to marry the plaintiff permitted herself to be seduced, confiding and relying upon defendant's promise to marry her; and further alleging in paragraph 6 that by reason of such intimate relation the plaintiff became pregnant and gave birth to a child, that by reason thereof, she has expended great sums of money for doctor and hospital bills, and will have to provide for the support of the child; that she has been required to give up her employment and will be unable to work for several years, all to her damage in the sum of $20,000.
Count Ill adopted all of the allegations of count 11 of the amended complaint and further alleged in paragraph 7 thereof that as a result of defendant's breach of his promise to marry her, she has suffered mental anguish and injury to her health, humiliation and degradation in the eyes of her friends and members of the community in which she resides, that she has lost the advantage of the worldly position she would have attained if defendant had complied with his promise and she has lost her opportunity, while engaged, to meet other suitors in marriage and arrange a marriage for herself.
By the 8th paragraph of said count she alleged that the defendant should be required to pay her full and complete compensatory damages for the injuries she suffered at his hands, and aggravated damages, and in addition punitive and exemplary damages in an amount as may be determined to be just and fair. She then prayed for damages in the sum of $30,000.
The defendant then moved to strike count I of the complaint, paragraphs 5 and 6 of count 11 of the amended complaint, and paragraphs 5, 6, 7, and 8 of count Ill of the amended complaint. The reasons assigned by the defendant were that there is no similar cause of action in the State of Illinois in a female for her own seduction and ensuing pregnancy; that seduction and pregnancy are not valid elements of actual damages in a suit for breach of promise but are aggravated damages not recoverable under the statute relating to breach of promise; that the expenses attendant to the birth of a child and the ensuing loss of wages and employment by the mother are not valid elements of damages in an action for breach of promise in Illinois; that plaintiff nowhere in counts I, II or III alleges that plaintiff has sustained actual damages nor are any actual damages set forth; and the damage allegations are in direct contravention of the act of 1947 relating to breach of promise. (Ill. Rev. Stat. 1955, chap. 89, pars. 25, 26, 27, and 33.) The plaintiff then orally moved to dismiss the defendant's motion, contending that the sections of the statute relating to breach of promise are unconstitutional in that they violate section 19 of article II, section 22 of article IV, and article III, of the Illinois constitution. The court then denied defendant's motion to dismiss count I of plaintiff's amended complaint, but did strike the contested paragraphs of counts II and III of the amended complaint and did dismiss counts II and III of said amended complaint.
Thereafter the plaintiff moved the court to dismiss count I of the amended complaint and elected to stand on counts II and III and further moved the court to enter final judgment in the cause so that an appeal might be taken to this court. The court thereupon did dismiss count I of the amended complaint and ordered the entire cause dismissed at plaintiff's costs.
Constitutional issues having been presented by the plaintiff's oral motion to dismiss the defendant's motion, and the court necessarily having ruled thereon, a constitutional issue is presented and the appeal is properly taken to this court. The questions presented by this appeal are whether the act of the General Assembly relating to breach of promise, (Ill. Rev. Stat. 1955, chap. 83, pars. 25 through 34,) (I) violates section 19 of article II of the constitution of Illinois; (2) violates section 22 of article IV of the constitution of Illinois; and (3) violates article III of the constitution of Illinois.
Section I of the act relating to breach of promise or agreement to marry states, in part, "it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by limiting the damages recoverable in such actions, and by leaving any punishments of wrongdoers guilty of seduction to proceedings under the criminal laws of the state, rather than to the imposition of punitive, exemplary, vindictive or aggravated damages in actions for breach of promise or agreement to marry."
Section 2 of the act provides "The damages to be recovered in action for breach of promise or agreement to marry shall be limited to the actual damages sustained as a result of the injury complained of," and section 3 states "No punitive, exemplary, vindictive or aggravated damages shall be allowed in any action for breach of promise or agreement to marry." Plaintiff insists that the damages ensuing from the seduction in this case, the consequent pregnancy and the costs of hospital and medical care relating to the birth of the child are, in fact, actual damages within the terms of the statute, that the plaintiff had a constitutional right to recover such damages and such right might not be taken away by statutory enactment.
Our review of the law in Illinois fails to reveal any case in the courts of Illinois wherein a female has been permitted to bring an independent action for damages for her own seduction. There are cases, however, where damages from seduction and ensuing pregnancy have been allowed in an action of breach of promise, wherein the seduction was alleged and proved to have been accomplished as a result of the trust and confidence placed in the seducer by virtue of his previous promise to marry the woman. It is the general rule and supported by the great weight of authority that seduction committed under a promise of marriage is admissible in a breach of promise action as evidence in aggravation of damages. (8 Am. Jur. 868, Breach of Promise, sec. 28.) In the first case reported in Illinois involving breach of promise, (Tubbs v. Van Kleek, 12 Ill. 446,) it was held that, in an action for breach of promise, seduction and the promise of marriage may be given in evidence in aggravation of damages. The court stated that such evidence might be heard by way of aggravating damages even though there were circumstances which would not of themselves constitute distinct causes of action. In the later case of Fidler v. McKinley, 21 Ill. 308, the seduction under promise of marriage was allowed as evidence in the action for breach of promise for the reason that "When a defendant has acted with a total disregard of the rights of others, and in violation of all principles of honor, or from principles of malevolence, the jury are warranted in giving such damages as will make the case an example to others, although these are beyond the real injuries sustained by the plaintiff."
The measurement of such aggravated damages is for the jury under the evidence, but it is a question of law when the facts in the particular case bring it within the rule in which punitive damages may be assessed. (Eshelman v. Rawalt, 298 Ill. 192.) It is true that the legislature can not pass an act depriving a citizen of any vested right, but to be a vested right, "It must be something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another. If, before rights become vested in particular individuals, the convenience of the State induces amendment or repeal of the laws, these individuals have no cause to complain." (People ex rel. Foote v. Clark, 283 Ill. 221.) Of like import is the case of People ex rel. Eitel v. Lindheimer, 371 Ill. 367. Numerous opinions of this court agree that the injured party is not entitled to aggravated damages as a matter of right, but that the allowance of such damages is strictly for the determination of the jury. (Wabash, St. Louis and Pacific Railway Co. v. Rector, 104 Ill. 296; Hawk v. Ridgway, 33 Ill. 473.) There being no vested right in any plaintiff to exemplary, punitive, vindictive or aggravated damages the legislature may therefore restrict or deny the allowance of such damages at its will. In this view we are joined by a number of our sister States. The Supreme Court of Alabama in the case of Louisville & Nashville Railroad Co. v. Street, 164 Ala. 155, 51 So. 306, states that a plaintiff is without legal right to punitive damages and "such damages may be even forbidden or affirmatively withheld by legislative enactment * * * in short, such damages until a vested property right attaches to them through a judgment rendered to them in a party's favor, are not properly within the protection of constitutions."
What a plaintiff is entitled to is a cause of action for damages actually sustained when he has suffered injury, and a vested right to punitive, exemplary, vindictive or aggravated damages arises only when such damages have been allowed by a judgment in the plaintiff's favor. This statute does not take away the cause of action for breach of promise or the right to the damages actually sustained by the aggrieved party. What the statute does deny is a right in the plaintiff to aggravated or exemplary damages for a seduction and pregnancy alleged to have been induced in consequence of the trust and confidence imposed in the defendant by reason of his previous agreement to marry. The legislature could properly restrict the allowance of such damages without denying a constitutional right to them.
The trial court therefore was not in error insofar as it ordered those parts of counts II and III relating to the alleged seduction, the ensuing pregnancy, and the damages arising therefrom to be stricken from said counts of the amended complaint. It is our view, however, that the remaining portions of counts II and III of the amended complaint contained proper allegations to state a cause of action under this statute and contained proper prayers for relief, with the exceptions of the prayer in count III for aggravated damages. The plaintiff, however, did not move to amend counts II and III by striking these portions relating to seduction, pregnancy and aggravated damages. She elected to stand upon counts II and III, including all of these provisions and allegations, and moved to dismiss count I, which contained a general prayer for relief sufficiently broad to include all of the actual damages requested, other than the above improper elements. By her action, any error in dismissing count III, for the reason that certain elements of damages alleged were proper, and that the trial court should have stricken only those portions that contained improper elements, rather than dismiss the said count, is waived by failure of appellant to raise the point in this court by statement or argument. (People ex rel. Nelson v. Olympic Hotel Bldg. Corp. ...