Case v. Smith

• Citation: 65 N.W. 279,107 Mich. 416
• Court: Supreme Court of Michigan
• Decision Date: 17 December 1895
• Parties: CASE v. SMITH.

65 N.W. 279

107 Mich. 416

CASE v. SMITH.

Supreme Court of Michigan

December 17, 1895

Error to circuit court, Genesee county; Joseph B. Moore, Judge.

Action by Edgar D. Case against Eli T. Smith. There was an order sustaining a demurrer to the declaration, and a judgment for defendant, and plaintiff brings error. Affirmed.

Tinker & Frackelton, for appellant.

Ed. S Lee (Durand & Carton, of counsel), for appellee.

McGRATH C.J.

Suit is brought upon a nonnegotiable promissory note, which omitted the "for value received" clause. Plaintiff declared on the common counts, and in four special counts sets up (1) that plaintiff had been for some time engaged to be married to a widow named D.; that November 10, 1892, he visited D., and found defendant concealed in the house; that defendant was at the house for the purpose of having carnal intercourse with said D., and in consequence plaintiff suffered great mental and physical anguish; (2) that prior to that time defendant had betrayed, seduced, and debauched said D., with full knowledge that she was the betrothed wife of plaintiff, to plaintiff's damage; (3) that defendant had also endeavored to alienate the affections of said D. from plaintiff; (4) that, after the discovery of defendant's intimacy with said D., defendant came to plaintiff, and requested plaintiff to keep the matter quiet, and agreed that if plaintiff would continue to keep company with said D., and would refrain from telling the people of that locality of the intimacy existing or that had existed between defendant and said D., viz. the seduction, debauching, and sexual intercourse aforesaid, defendant would recompense him well for the same; that, in consideration of plaintiff's agreeing so to do, defendant executed and delivered to plaintiff the note in question; that plaintiff did as he agreed, and publicly kept company with said D., and did refrain from informing the public of the intimacy that had existed between defendant and said D.; that said note was expressly given and accepted with the agreement that defendant was to pay the same in consideration of plaintiff's keeping company with said D., and refraining from expressing to said defendant's wife the criminal proceedings and action aforesaid; that plaintiff has performed the agreement on his part, but defendant has failed so to do. A bill of particulars was demanded, under the common counts, and furnished, which contained the following items: "For damages in alienating the affections of Mary B. Davidson from plaintiff, $5,000. For damages in seducing debauching, and having carnal intercourse with Mary B Davidson, the betrothed wife of plaintiff, $5,000. For failure of defendant to keep his agreement with plaintiff, and in failing to pay the note set forth in plaintiff's declarations, $5,000." The case comes here on appeal from an order sustaining a demurrer to said declaration, and judgment accordingly.

A civil action for the alleged seduction of D. could only be brought by the woman herself, or by her father, guardian, or some relative. A betrothed person has no right of action for the seduction or the alienation of the affections of his affianced. Cooley, Torts, p. 236. In Swanson v. Griffin 8 South. (Miss.) 511, cited by appellant, defendant had seduced plaintiff's infant unmarried daughter, and she had given birth to a child. In Brannum v O'Connor, 77 Iowa, 632, 42 N.W. 504, also...