Inman v. Willinski.

• Decision Date: 15 March 1949
• Parties: INMAN v. WILLINSKI.
• Court: Maine Supreme Court

65 A.2d 1

INMAN

v.WILLINSKI.

Supreme Judicial Court of Maine.

March 15, 1949.

Exceptions from Superior Court, Piscataquis County.

Bastardy action by Elizabeth Inman against Lawrence Willinski. Order sustaining a general demurrer to the complaint, and complainant brings exceptions.

Exceptions overruled.

Matthew Williams, of Dover-Foxcroft, for complainant.

Judson C. Gerrish, of Milo, for respondent.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS, and MERRILL, JJ.

TOMPKINS, Justice.

On exceptions to sustaining a general demurrer to the complaint in a bastardy action brought under Chapter 153, Section 23 et seq., which relates to bastards and their maintenance and reimbursement to the mother for lying-in expenses. Respondent waived argument and filed no brief.

From the copies of the proceedings before us it appears that on the 18th day of April 1947, the complainant made her accusation on oath before a Justice of the Peace, stating that she was pregnant with a child, which was delivered dead November 21, 1946, and which, if it had been born alive, would have been a bastard, and accused the respondent of being the father of said child. In her complaint and accusation she stated the time and place where the child was begotten, and prayed for process that the respondent be apprehended and held to answer to the complaint and to be further dealt with relative thereto as the law directs.

The warrant was duly issued reciting the facts as set out in the accusation, and the respondent was arrested and brought before a Justice of the Peace. After hearing the Justice of the Peace ordered the respondent to give bond, conditioned for his appearance at the September term 1947 of the Superior Court for Piscataquis County. The bond was furnished and the case continued until the March term 1948. At the latter term the complainant filed a declaration as provided by Section 27 of Chapter 153 of the Revised Statutes, stating that she was delivered of a bastard child on the 17th day of November 1946, that said child was begotten by the accused on the 30th day of May 1946, and the place thereof; that during the time of her travail being put upon the discovery of the truth she accused the respondent of being the father of said bastard child of which she was about to be delivered; that she had been constant in said accusation; and that she still accused said respondent of being the father of her bastard child. Thereafter the respondent filed a general demurrer to the complaint. Issue was joined, and after hearing, the Justice Presiding sustained the demurrer.

The demurrer, ‘Is a form of pleading incident to every kind of judicial proceeding’. Parks v. Crockett, 61 Me. 489, at page 496. A general demurrer admits all facts well pleaded, and challenges their sufficiency in law upon which to maintain the action. And the only issue is whether in the language used the plaintiff has stated a legal cause of action. Brown v. Rhoades, 126 Me. 186, 137 A. 58, 53 A.L.R. 834; Bank v. Kingsley, 84 Me. 111, at page 113, 24 A. 794.

Bastardy proceedings are purely Statutory and were unknown to the common law. Woodbury v. Yeaton, 135 Me. 147, at page 148, 191 A. 278.

The complainant seeks to recover her costs of suit and expenses of her delivery and her nursing, medicine and medical attendance during the period of her sickness and convalescence.

Solution of the question depends upon the construction of the Bastardy Statute. A statute must be construed as a whole. Rackliff v. Inhabitants of Greenbush, 93 Me. 99-104, 44 A. 375.

Section 23 of Chapter 153 provides, ‘When a woman pregnant with a child, which, if born alive, may be a bastard, or who has been delivered of a bastard child, accuses any man of being the father thereof, before any justice of the peace, and requests a prosecution against him, such justice shall take her accusation and examination on oath, respecting the accused, and time and place when and where the child was begotten, as correctly as they can be described, and such other circumstances as he deems useful in the discovery of the truth.’

Section 24 provides; ‘The justice may issue his warrant for the apprehension of the accused * * *.’

Section 25 provides; ‘When the accused is brought before such or any other justice, he may be required to give bond to the complainant, with sufficient sureties, in such reasonable sum as the justice orders, conditioned for his appearance at the next term of the superior court for the county in which she resides, and for his abiding the order of the court thereon * * *.’

Section 26 provides; ‘If at such next or any subsequent term, the complainant is not delivered of her child, or is unable to attend court, or shows other good reason, the cause may be continued’.

Section 27 provides; ‘Before proceeding to trial, the complainant must file a declaration, stating that she has been delivered of a bastard child begotten by the accused, and the time and place when and where it was begotten * * *; and that being put on the discovery of the truth during the time of her travail, she accused the respondent of being the father of her child, and that she has been constant in such accusation.’

Section 28 provides; ‘When the complainant has made said accusation; been examined on oath as aforesaid; been put upon the discovery of the truth of such accusation at the time of her travail, and thereupon has accused the same man with being the father of the child of which she is about to be delivered; has continued constant in such accusation, and prosecutes him as the father of such child before such court; he shall be held to answer to such complaint; and she may be witness in the trial.’

Section 29 provides; ‘If, on such issue, the jury finds the respondent not guilty, he shall be discharged; but if they find him guilty, or the facts in the declaration filed are admitted by default or on demurrer, he shall be adjudged the father of said child; stand charged with its maintenance, with the assistance of the mother, as the court orders; and shall be ordered to pay the complainant her costs of suit and for the expense of her delivery and of her nursing, medicine, and medical attendance during the period of her sickness and convalescence, and of the support of such child to the date of rendition of judgment; and shall give a bond, with sufficient sureties approved by the court, or by the clerk of said court * * * to the complainant to perform said order, and a bond, with sufficient sureties so approved, to the town liable for the maintenance of such child * * *.’

Under the Statute as it existed prior to 1909 no provision was made for lying-in expenses. Chapter 111 of Public Laws of 1909 amended section 7 of Chapter 99 of the Revised Statutes of 1903. This section now appears as Section 29 of the Revised Statutes of 1944. The amendment provided that a filiation order might include reimbursement to the complainant for costs of suit, expenses of her delivery, her nursing, medicine, and medical attendance during the period of her sickness and convalescence. There was no amendment, however, made to Section 23 or the other Sections of the Statutes corresponding to the Sections of the Revised Statutes of 1944, which authorized the commencement and prosecution of the action. The right to institute action was confined to a woman who was, ‘Pregnant with a child, which, if born alive, may be a bastard’, or after the birth of the child was still confined to a woman who had, ‘been delivered of a bastard child’, and the Statutory requirement that before proceeding to trial the complainant must file a declaration stating that she, ‘has been delivered of a bastard child’, remained unchanged. The sole object of the Statute before the amendment of 1909 relating to bastard children was to compel the putative father to aid in supporting his illicit offspring. Without his assistance the support must fall on the mother or the municipality. Woodbury v. Wilson, 133 Me. 329, 177 A. 708, and cases there cited.

The purpose of the amendment of 1909 was to enlarge the order for the benefit of the mother, and thus compel the father to render additional help in paying costs of suit, the expenses of her delivery, nursing, medicine, and medical attendance during the period of her sickness and convalescence. Woodbury v. Wilson, supra.

Will the fact that the child is born dead before complainant institutes proceedings abate the action and relieve the respondent from the expenses provided for by the 1909 amendment to Section 29? This is the first time the question has been before this Court.

In Canfield v. State, 56 Ind. 168, there was a prosecution in which the complainant alleged she had been delivered of a bastard child. The evidence showed that the child was stillborn, that its lungs were never inflated, and the prosecution was commenced after the birth of the child. The Court held that the proof did not sustain the averment of the complaint that she, ‘Had been delivered of a bastard child. That never having breathed it had never lived; Until a child is wholly born and has attained a separate existence, it is but a foetus in utero and not a human being, within the meaning of the law authorizing a proceedings for the maintenance of bastard children after their birth.’

In State v. Beatty, 61 Iowa 307, 16 N.W. 149, the Statute provided that when, ‘any woman * * * is delivered of a bastard child, or is pregnant with a child, which, if born alive, will be a bastard, complaint may be made in writing * * *.’ Code 1882, § 4715. The Statute further provided, ‘If the accused be found guilty, he shall be charged with the maintenance of the child * * * with the costs of the suit.’ Code 1882, § 4721. The action was commenced during pregnancy, the child was born dead, the Court said, ‘It having been dead born it never was a being whose maintenance could be charged to any one. It is true, the action was properly commenced before...