Elint v. Gllpin

• Decision Date: 25 June 1887
• Citation: 29 W.Va. 740,3 S.E. 33
• Court: West Virginia Supreme Court
• Parties: ELINT v. GlLPIN.

3 S.E. 33

29 W.Va. 740

ELINT

v.GlLPIN.

Supreme Court of Appeals of West Virginia.

June 25, 1887.

1. Limitation of Actions—Bkeach of Marriage Promise.

The statutory bar is one year in an action for damages for the breach of a promise to marry.

2. Appeal—Prejudicial Error.

When a proper plea is offered by the defendant, and rejected by the inferior court, this court will presume that the defendant was prejudiced thereby, and reverse the judgment, unless it affirmatively appears by the record that no injury could have resulted to the defendant by such rejection of his plea.

(Syllabus by the Court.)

Error to circuit court, Randolph county.

Action to recover damages for breach of promise of marriage. The opinion states the case.

J. Hop. Woods and Jas. Morrow, Jr., for plaintiff in error. L. D. Strader and T. A. Bradford, for defendant in error.

Snyder, J. This is an action of trespass on the case in assumpsit, brought October 24, 1885, by Alice Flint against Ezra C. Gilpin, in the circuit court of Randolph county, to recover $5,000 damages for an alleged breach of promise by the defendant to marry.the plaintiff. The defendant demurred to the declaration, the demurrer was overruled, and then defendant pleaded non assumpsit, on which issue was joined; also tendered a special plea, alleging that the cause of the plaintiff's action did not accrue within one year next before the bringing of this action. Upon the objection of the plaintiff, this plea was rejected by the court, and the defendant excepted. The case was then tried by jury, and a verdict found in favor of the defendant for $2,500. The defendant made a motion to set aside the verdict on the ground of excessive damages, which motion the court overruled, and entered judgment on the verdict. The defendant obtained this writ of error. No defect has been pointed out in the declaration, and I have been unable to discover any. Therefore there was no error in the action of the court overruling the demurrer.

The only error assigned and insisted upon by the plaintiff in error is the rejection of the special plea, which alleged one year is the limit of the statutory bar to this action. This is the sole question presented by the record. Our statute declares that the limitation of all personal actions, if they be for matters of a nature that, in case of the death of the party, they could not be brought by or against his representative, shall be one year from the time the right to bring the same shall have occurred, and not after. Section 12, c. 102, Acts 1882; same as. section 12, c. 104, Code, 549. As to the cases in which an action may be brought by or against the representative, our statute declares that "a personal representative may sue or be sued upon any judgment for or against or any contract of or with his decedent." Section 19, c. 85, Code, 504.

It is apparent that the solution of the case before us depends upon whether or not the personal representative of a decedent may sue or be sued, either at common law or under the provisions of this statute, on a contract founded upon a promise of marriage. If an action cannot be maintained by or against the representative on such contract, then it is clear that the statutory bar is one year, and no more. The direct question thus presented was decided by the court of appeals of Virginia, upon full consideration and an able review of the authorities, in Grubb v. Suit, 32 Grat. 203. In that case, at the conclusion of the citation of the authorities denying the right to maintain such an action at common law, the opinion states: "After this array of authorities, English and American, —after the failure of counsel to produce a single case, or even the dictum of one author or writer, to the contrary, —it would seem the height of rashness to insist that an action of this sort can be maintained at common law against an executor or administrator, without averring and proving some special damage sustained. Whether upon such an averment the action can be maintained has not been fully determined." Then, after considering the statute in that case, which is identical with our statute, being in fact the same, the opinion concludes, and the court decides that neither under the common law nor the statute can an action for the breach of a promiseto marry be maintained against the representative of the promisor. According to the common law, all personal actions died with the person, —actio personalis moritur cum persona. But this rule has been modified by legislation so that now, in this state, the representative of a decedent may sue or...