Conway v. O'Brien

• Decision Date: 31 December 1929
• Citation: 269 Mass. 425,169 N.E. 491
• Parties: CONWAY v. O'BRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 425

169 N.E. 491

CONWAY

v.O'BRIEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 31, 1929.

Report from Superior Court, Suffolk County; A. R. Weed, Judge.

Action by Mary E. Conway against Minnie O'Brien. Demurrer to the declaration was overruled, and the trial judge reported the case for the determination of the Supreme Judicial Court Judgment for defendant.

Pierce and Sanderson, JJ., dissenting.

Edward M. Dangel and Leo E. Sherry, both of Boston, for plaintiff.

Wm. J. Bradley, of Lawrence, for defendnat.

CROSBY, J.

This is an action of tort to recover damages. The amended declaration alleges that the plaintiff had ‘entered into a contract with one Michael Carroll, whereby they mutually agreed to marry each other, that the defendant, well knowing of the existence of the said agreement between the said plaintiff and the said Michael Carroll, maliciously and without probable cause, procured, influenced and obtained the said Michael Carroll to breach the said agreement, and through the procurement by the defendant, the said Michael Carroll did breach the agreement and refused to perform the same, wherefore the plaintiff suffered great and severe injuries and damages. * * *’ The trial judge overruled a demurrer to the declaration and reported the case for the determination of this court. The question is whether an action can be maintained against a third person for maliciously interfering with, and procuring a breach of, a contract to marry. The general rule is well established that ‘the right of one to have the benefit of his contract is a right which can lawfully be interfered with only by one who is acting in the exercise of an equal or superior right which comes in conflict with the other.’ Moore Drop Forging Co. v. McCarthy, 243 Mass. 554, 562, 137 N. E. 919, 922;Folsom v. Lewis, 208 Mass. 336, 338, 94 N. E. 316,35 L. R. A. (N. S.) 787.

It is also held that no one can by the use of slanderous or libelous words concerning one of the parties induce the other party to repudiate a contract to marry. In such a case an action will lie for slander or libel but not for inducing a breach of the contract. Leonard v. Whetstone, 34 Ind. App. 383, 386, 68 N. E. 197,107 Am. St. Rep. 252;Overhultz v. Row, 152 La. 9, 12, 92 So. 716;Homan v. Hall, 102 Neb. 70, 165 N. W. 881, L. R. A. 1918C, 1195;Ableman v. Holman, 190 Wis. 112, 208 N. W. 889, 47 A. L. R. 440.

In Quebec it has been held that a parent may be liable in case a minor child wrongfully breaks a contract to marry even without the active interference of the parent. Internoscia v. Bonelli, 28 Que. Super. 58; Delage v. Normandeau, 9 Que. Q. B. 93. But these decisions seem to be based upon a law of the province making a parent liable for the torts of his minor child, the breach of promise being regarded as a tort.

In Homan v. Hall, supra, it was held that a betrothed cannot maintain an action for damages against a third party not based on slander but solely because the man she had agreed to marry was induced by the defendant to breach the contract. In that case it was said at pages 72 and 73 of 102 Neb., 165 N. W. 882, L. R. A. 1918C, 1195: ‘The right of engaged parties to ask the advice of their friends and the right of the friends to give advice has never been denied. To hold that a third party may be subject to answer in damages for advising or inducing an engaged person to break the engagement might result in a suit by every disappointed lover against his successful rival. The state has an interest in the marriage relation, and until the marriage is solemnized no domestic rights exist, and therefore cannot be violated.’ In Ableman v. Holman, supra, it was held that no legal liability attaches for inducing a breach of a contract to marry in the absence of slanderous or libelous statements, duress, or other unlawful means. In Leonard v. Whetstone, supra, it was said at page 386 of 34 Ind. App.,68 N. E. 198,107 Am. St. Rep. 252: ‘But if a person in induced to refuse to comply with his agreement to marry by false and slanderous charges made against the other party to the agreement by a third person, the action is not against the third person for causing a breach of the contract, but for slander or libel, as the case might be.’ See, also, Walker v. Cronin, 107 Mass. 555, 564; Glamorgan Coal Co., Ltd., v. South Wales Miners' Federation, [1903] 2 K. B. 545; Lumley v. Gye, 2 El. & Bl. 216, 239. Certain text books declare that no action lies for inducing a breach of a contract to marry. See Cooley on Torts (3d Ed.) 494; Schouler on Marriage, Divorce, Separation and Domestic Relations (6th Ed.) vol. 2, § 1288; Burdick on Torts (4th Ed.) 472. See, also, Case v. Smith, 107 Mich. 416, 65 N. W. 279,31 L. R. A. 282, 61 Am. St. Rep. 341;Davis v. Condit, 124 Minn. 365, 144 N. W. 1089,50 L. R. A. (N. S.) 142, Ann. Cas. 1915B, 544.

On the other hand, it was held in Gunn v. Barr (1926) 1 D. L. R. 855, by the Appellate Division of the Alberta Supreme Court, that a brother of the plaintiff's betrothed was liable for inducing a breach of a contract to marry made by his brother, and that the action rested upon the same considerations as an action for inducing a breach of any contract. This conclusion is wholly at variance with what has been decided in other jurisdictions and finds no support by any other court so far as we are aware.

Upon grounds of public policy we are of opinion that this action cannot be maintained. Although marriage is a civil contract, it is a relation between the parties which intimately concerns the welfare of society and the state, and the parents and other relatives and friends of the contracting parties ought to be free to advise them without incurring a liability to be called upon to respond in damages where such advice results in the breach of the contract to marry.

Upon consideration of the authorities and of the principles involved, we are of opinion that the ends of justice will be best served by holding that no action of this kind can be upheld. To decide otherwise would be to open the door to unwarranted litigation, to promote unfortunate engagements and to encourage unjustifiable attacks upon any relative or friend who could respond in damages. We are of opinion that a plaintiff is given an adequate remedy by having a right of action for slander or libel, as the case may be, whereby a contract to marry has been broken. The result reached is not contrary to what was decided in Lukas v. Tarpilauskas (Mass.) 165 N. E. 513. In the opinion of a majority of the court the demurrer should have been sustained, and as the declaration does not set forth a cause of action, judgment is to be entered for the defendant.

So ordered.

PIERCE, J.

I regret that I am unable to agree with the opinion.

The case is before us after an order of a judge of the superior court overruling a demurrer to an amended declaration, without further proceedings, on report of the single question raised by the demurrer to the amended declaration. The pleadings as amended are made a part of the report. If the order overruling the demurrer was correct, the order is to stand; otherwise, such order is to be entered as law and justice require.

The amended declaration reads: ‘The plaintiff says that she had entered into a contract with one Michael Carroll, whereby they mutually agreed to marry each other, that the defendant, well knowing of the existence of the said agreement between the said plaintiff and the said Michael Carroll, maliciously and without probable cause, procured, influenced and obtained the said Michael Carroll to breach the said agreement, and through the procurement by the defendant, the said Michael Carroll did breach the agreement and refused to perform the same, wherefore the plaintiff suffered great and severe injuries and damage, all to the amount as alleged in her writ.’ The defendant's demurrer reads: ‘And now comes the defendant in the above-entitled matter and demurs to the plaintiff's declaration, and says that the matters contained in the plaintiff's declaration are insufficient in law to enable the plaintiff to maintain her action.’

The facts well pleaded in the amended declaration which are admitted by the demurrer are that the defendant knew that the plaintiff and Michael Carroll had entered into a mutually enforceable contract to marry each other; that well knowing the existence of said contract she...