Abbott v. Abbott

Decision Date05 May 1877
Citation67 Me. 304
PartiesCYNTHIA H. ABBOTT v. RANSOM B. ABBOTT et als.
CourtMaine Supreme Court

ON REPORT.

CASE. For that heretofore, to wit, on or about the 5th day of September, A. D. 1869, at Hancock in said county, the said defendants maliciously intending to oppress and imprison the plaintiff and to deprive her of her liberty did then and there conspire and act and agree together with others to charge and accuse the plaintiff with being a crazy and insane person and a fit subject for imprisonment in the insane hospital or asylum situated at Augusta, being an institution for the keeping and restraint of insane persons, and in pursuance of said false and wicked intentions, the said defendant and others did falsely and maliciously charge and pretend that the plaintiff was a crazy and insane person unfit and unsafe to be permitted to go at large or be at liberty, and said defendant did then and there, to wit, at said Hancock, cause the plaintiff to be violently assaulted and taken in the public highway and with great force and inhumanly bound and put in irons and conveyed to the insane asylum or hospital aforesaid, and there imprisoned as an insane person for a long time against her will and to the great injury of her health and comfort, and thereby depriving her of her rightful home and the society of her children and friends hitherto; and the said plaintiff having escaped from said hospital the said defendants following up their said malicious and wicked purposes, threatened, followed and harrassed said plaintiff and endeavored to seize and take said plaintiff back to said asylum and have her further confined, so that the plaintiff was obliged to secrete and hide to save herself from said defendants, and to go away beyond the limits of the state to preserve her liberty and escape the malicious and wicked wrongs and oppressions of the defendants.

And the plaintiff further says that said defendants at said Hancock, on or about the 5th day of September, 1869, did wickedly and maliciously and falsely accuse the plaintiff with being an insane person, and with force and arms did cause her to be assaulted and taken and conveyed to the insane asylum or hospital at Augusta and there imprisoned for a long time, whereby plaintiff was greatly injured and suffered greatly in body and mind and was subjected thereafter to great hardship and suffering and was greatly harrassed and injured by defendants.

And also for that the defendants on the day and year aforesaid made another assault on the plaintiff and her then beat wounded and illtreated so that her life was then thereby greatly despaired of, and other wrongs to the plaintiff then did against the peace of the state and to the plaintiff's damage.

Writ dated April 28, 1874. Ad damnum, $5000. Ransom B Abbott, at the time of the acts complained of, was the lawful husband of the plaintiff, and continued to be so until October, A. D. 1872, when she was divorced from him. The plaintiff remained at the hospital in Augusta but a few days and escaped therefrom. The case is reported to the full court to determine the question of law arising upon the facts. If upon the facts as stated in the declaration, together with the above stated facts, the action is barred by the statute of limitations, or if for other reasons, the plaintiff cannot recover against either of the defendants, then the plaintiff to be nonsuit. If maintainable, against either or all of the defendants, the action to stand for trial. The court to indicate whether, upon the foregoing grounds, the action is maintainable against all or any of the defendants.

H. D. Hadlock, for the plaintiff.

A. Wiswell & A. P. Wiswell, for the defendants.

PETERS J.

The defendants forcibly carried the plaintiff to an insane asylum. The case assumes the act to have been wrongful and wanton. The plaintiff and one of the defendants, at the time, were husband and wife; since then she was divorced. Can an action of tort, for such an injury, instituted after divorce, be sustained by her against her former husband? We have no doubt, that it cannot be maintained.

Precisely the same question was lately before the English court, and the decision and the reasons on which the decision is grounded meet with our unqualified approval. Phillips v. Barnet, 1 Q. B. D. 436. It is there held that a wife, after being divorced from her husband, cannot sue him for an assault committed upon her during coverture. In the course of the discussion in that case, Lush, J., says: " Now I cannot for a moment think that a divorce makes a marriage void ab initio ; it merely terminates the relation of husband and wife from the time of the divorce, and their future rights with regard to property are adjusted according to the decision of the court in each case; " Field, J., says: " I now think it clear that the real substantial ground why the wife cannot sue her husband is not merely a difficulty in the procedure, but the general principle of the common law that husband and wife are one person; " and Blackburn, J., states the objection to be " not the technical one of parties, but because, being one person, one cannot sue the other."

The theory upon which the present action is sought to be maintained is, that coverture merely suspends and does not destroy the remedy of the wife against her husband. But the error in the proposition is the supposition that a cause of action or a right of action ever exists in such a case. There is not only no civil remedy but there is no civil right, during coverture, to be redressed at any time. There is, therefore, nothing to be suspended. Divorce cannot make that a cause of action which was not a cause of action before divorce. The legal character of an act of violence by husband upon wife and of the consequences that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any.

The doctrine advocated by the plaintiff finds no support from any of the principles of the common law. According to the oldest authorities, the being of the wife became, by marriage merged in the being of the husband. Her disabilities were about complete. By the earliest edicts of courts, he had a right to strike her as a punishment for her misconduct, and her only remedy was, that " she hath retaliation to beat him again if she dare." And Chancellor Kent lays down the doctrine, not contradicted or challenged in any of the editions of his commentaries, that, " as the husband is the...

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87 cases
  • Downs v. Poulin
    • United States
    • Supreme Judicial Court of Maine (US)
    • 11 Enero 1966
    ...immunity rule in this State is analogous to the rule governing actions between husband and wife, except as provided by statute. Abbott v. Abbott, 67 Me. 304, 309; Hobbs v. Hobbs, 70 Me. 383; Libby v. Berry, 74 Me. 286, 289; Atwood v. Higgins, 76 Me. 423, 426; Sacknoff v. Sacknoff, 131 Me. 2......
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    ...on account of the negligence of her own husband. Maine v. James Maine & Sons Company, 201 N.W. 20, 37 A.L.R. 161; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Phillips v. Barnett, L. R. I. W. B. Div. Unless the servant is liable, there can be no liability on the part of the master. White v......
  • United States v. Moore
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Octubre 1972
    ...of absolute disability preventing one spouse from suing the other and children from suing their parents for negligence. Abbott v. Abbott, 67 Me. 304 (1877); Libby v. Berry, 74 Me. 286 (1883); Anthony v. Anthony, 135 Me. 54, 188 A. 724 (1937). The absolute disability extends to suits between......
  • Lorang v. Hays, 7514
    • United States
    • United States State Supreme Court of Idaho
    • 1 Julio 1949
    ...... that neither spouse could maintain an action against the. other sounding in tort. Abbott v. Abbott, 67 Me. 304, 24 Am.Rep. 27, 41 C.J.S., Husband and Wife § 396,. p. 877; Leonardi v. Leonardi, 21 Ohio App. 110, 153. N.E. 93. . . ......
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2 books & journal articles
  • Civil Costs: Adrift and Untethered from Common Law
    • United States
    • Maine State Bar Association Maine Bar Journal No. 27-4, September 2012
    • Invalid date
    ...Me. 596, 599-600 (1874); see also MacMahon, Progress, Stability, and the Struggle for Equality at 12-31 (2009). 183. See Abbott v. Abbott, 67 Me. 304 (1877) and Libby v. Berry, 74 Me. 286 (1883). For a brief discussion on these two cases, see MacMahon, Progress, Stability, and the Struggle ......
  • Article Title: the Doctrine of Interspousal Immunity in Utah: Does it Still Exist?
    • United States
    • Utah State Bar Utah Bar Journal No. 12-7, September 1999
    • Invalid date
    ...L. Rev. 903. 6 Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359, 361-62. 7 Id. at 364-65, see also Abbott v. Abbott, 67 Me. 304, 306 (1877), overruled, MacDonald v. MacDonald, 412 A.2d 71 (1980). 8 See Utah Code Ann., Section 78-11-1 (1953, as amended). 9 Wanamaker at ......

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