Appeal from the Circuit Court of McLean county; the Hons.
WILLIAM C. RADLIFF, and HUBERT H. EDWARDS, Judges, presiding.
Reversed and remanded.
JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 15, 1958.
Defendant appeals from a judgment of the Circuit Court of McLean County upon a jury verdict in an action for breach of promise to marry.
It is alleged in the complaint that at various times between May, 1949 and August, 1954, the defendant promised to marry plaintiff; that as a direct consequence of said promise, the defendant seduced plaintiff, which resulted in her pregnancy and the subsequent birth of a child on February 15, 1954; that about Sept. 1, 1954, defendant again promised to marry plaintiff during the Christmas holidays of 1954; that on Dec. 12, 1954, defendant informed plaintiff of his marriage to a third person on Oct. 30, 1954; and that on Feb. 12, 1955, plaintiff gave a notice of her intention to sue as required by Section 4 of an Act relating to actions for breach of promise or agreement to marry (Illinois Revised Statutes, 1953, Chap. 89, Par. 28).
The complaint further alleges that by reason of defendant's breach of promise to marry her, she has been deprived of any and all financial benefits naturally to be expected from a marriage to defendant and has had cast upon her the expense of bearing and maintaining the child born as the result of her seduction by defendant; that she had been humiliated and caused to suffer great physical injury and mental anguish by reason of the breach of promise to marry and has expended large sums of money in bearing and caring for the said child; to-wit, the sum of $5000; and that she has been deprived of earnings by the said breach of promise to the extent of $1200. Damages in the total sum of $25,000 are prayed.
Defendant filed a motion to dismiss the complaint primarily upon the ground that the notice of plaintiff's intention to file suit was not given within 90 days from the date of the breach as required by statute and accordingly her action was barred under Par. 29, Chap. 89, Illinois Revised Statutes, 1953. The motion also recited that the complaint contained allegations as to damages not recoverable by virtue of Par. 27 of the said Statute which provides, "No punitive, exemplary, vindictive or aggravated damages shall be allowed in any action for breach of promise or agreement to marry." The plaintiff filed suggestions in opposition to defendant's motion in which she asserted that her notice complied with the Statute and in the alternative that Par. 28 thereof was unconstitutional and void as violative of Sec. 19 of Article II of the Illinois Constitution. Defendant's motion to dismiss the complaint was allowed by the Circuit Court and from its judgment in bar of the action, plaintiff appealed to the Supreme Court. This appeal resulted in reversal of the judgment and remandment of the cause with directions to overrule the motion to dismiss.
Upon reinstatement of the cause the defendant filed his answer and the issues were then submitted to a jury which returned a verdict for plaintiff in the sum of $15,000. The trial court, upon denial of defendant's post-trial motions, entered judgment for plaintiff and this appeal followed.
The principal reason advanced by defendant for reversal is that the trial court erred in instructing the jury as to the elements which it might consider in assessing plaintiff's damages. Defendant complains primarily of plaintiff's given Instruction 7 which reads as follows:
"The Court instructs the jury that if you find the issues for the Plaintiff, then in estimating the Plaintiff's damages, it is proper for the jury to consider, if you believe from the evidence that a child of the Defendant was conceived by Plaintiff in reliance upon and as a direct result of Defendant's promise to marry her, if you believe such promise was made and subsequently broken, the reasonable and necessary expenditures laid out by the Plaintiff in bearing such child, and in caring for and sustaining him since his birth, and such damages as she will necessarily and reasonably incur in providing and caring for such child hereafter during his infancy, so far as such damages and expenditures appear from the evidence. You may also take into consideration loss of earnings incurred by the Plaintiff, if any, during the period of her pregnancy and confinement, so far as the same are shown by the evidence.
"In assessing the Plaintiff's damages, if you find the issues in favor of the Plaintiff, you may take into account as a matter of actual damage, humiliation and disappointment, if any, and the loss of any and all financial or worldly benefits or advantages which would have naturally accrued to the Plaintiff from a marriage to a man of the position in life of the Defendant, so far as such damages are or may be shown by the evidence and so far as, in your judgment, such damages are the proximate result of Defendant's promise to marry Plaintiff and the breach thereof, if you believe from the evidence that such promise and breach incurred (sic) and if you find the issues in favor of the Plaintiff."
Defendant insists that the giving of this instruction permitted the jury to award plaintiff aggravated or punitive damages for her seduction, pregnancy and childbirth, which may not be recovered in a breach of promise action.
Answering such contention, plaintiff argues two points: namely, first, that the claimed error of the trial court with respect to the giving or refusing of instructions is not properly presented for this court's consideration by either the record or abstract, and secondly, that because on the appeal to the Supreme Court defendant failed to urge objections to the damage allegations of the complant, he thereby waived any such objections.
All instructions given and refused at the trial are included in the report of proceedings and the correctness thereof is certified to by the trial judge. Plaintiff's argument that error with respect to the instructions is not properly preserved in the record appears to be without merit.
In its opinion (White v. Prenzler, 7 Ill.2d 624), the Supreme Court indicates that although the case was argued in that court on constitutional grounds, it regarded the statutory construction question as being decisive and that "the determinative issue is whether, on the allegations of her complaint, the plaintiff complied with the statutory notice requirement." ...