Larson v. McMillan

• Decision Date: 29 January 1918
• Docket Number: 14347.
• Court: Washington Supreme Court
• Parties: LARSON v. McMILLAN.

170 P. 324

99 Wash. 626

LARSON v. McMILLAN.

No. 14347.

Supreme Court of Washington

January 29, 1918

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Olivia D. Larson against Robert S. McMillan. Judgment for plaintiff, and defendant appeals. Affirmed.

Griffin & Griffin, of Seattle, for appellant.

J. W Albright, of Seattle, for respondent.

CHADWICK J.

This is an action for deceit. The principal question is whether the action is barred by the statute of limitations. To answer compels us to state the facts. This we shall do as briefly as the nature and importance of the case will permit.

Some 30 years ago appellant married in the province of Prince Edward Island, Canada. At all times hereinafter mentioned his family consisted of the wife, Catharine McMillan, and two sons, John Francis McMillan and William McMillan. At some time, it is not made clear in the record, appellant went to Alaska. That he was in Alaska four years prior to the fall of 1911 may be reasonably inferred from the testimony. He engaged in mining on Engineer creek, Esther creek, and other creeks in the vicinity of Iditarod.

Respondent, a single woman, a native of Sweden came to this country about 1896. She worked as a domestic in Boston and New York. Later she went to Alaska, where she engaged in domestic service, and later bought and operated a laundry on Engineer creek. Appellant met respondent in the year 1909. They became friends, and kept company with each other up to the spring or early summer of 1911, when their relations became more intimate than the law allows.

Respondent being pregnant by appellant, they were married on the 11th day of September, 1911, and at once began to live together as husband and wife. When she married, respondent had nearly $2,000 in her own right. This seems to have been the ready capital of the twain at the time. Appellant had some mining property, which up to that time had yielded no substantial returns. They came out to the States in the fall, November or December, 1911, and went on to Boston for a visit. Appellant desired that respondent should go to Sweden for a visit. This was agreed to.

Appellant went to Price Edward Island ostensibly to visit his parents in reality to visit his family. Respondent remained in Boston intending to await the delivery of her child. Respondent wrote appellant at an address which he had given her. Upon receipt of this letter he directed that she write no more letters, saying he would not remain there as long as he had first intended. He remained, however, with his family until some time late in February. He came back to Seattle, and early in March telegraphed respondent for $125 with which to return North. This she sent to him by telegraphic money order.

Respondent, after being delivered of a stillborn child, went to Sweden, where she visited her people. She returned to Boston in July. She later went to San Francisco, and, being without sufficient funds to buy passage to Iditarod, engaged as a domestic for several months. She arrived at Iditarod in the last days of August, 1913. The parties at once resumed their former relations.

In September respondent discovered a letter of date February 13, 1913, written by respondent's son John Francis McMillan, in which he tells of the family, their dissatisfaction with present conditions of respondent's visits home, and urging him strongly to either sell or make such disposition of the farm as would permit the family to come West. In the letter the mother is referred to frequently. 'Mother wants to go West with us.' 'Mother does not want to stay at Hunter River alone.' From these expressions and her subsequent conduct it is insisted that respondent 'certainly learned that appellant had a wife living if she did not know it before.'

Respondent went in confidence to a Mrs. Riley, the wife of appellant's partner, and left the letter with her for safe-keeping. She may have told one or two others. Later she called in a Mr. Rodin, a lawyer, and told him of her discovery and her anxiety. He advised her to put the question squarely up to appellant. This she did. Appellant assured her that he had not been a married man. He explained the letter saying that he had always intended telling her that when a young man he had gotten a young girl in trouble; that he had left her on his farm and had gone his way. Respondent asked 'how about the second son?' He assured her that the woman had later married, and had a child by her husband, who had since died. Respondent, who seems to have been whipped of two emotions, affection for respondent, who was a 'good husband,' and doubt of her relation to him, told him that she was not entirely satisfied. She testifies:

'So I said: 'Well, Bob, still it don't really sound right. I am nervous about it, and I am going to tell you one thing, Bob; I will be more fair to you than you have been to me. I am going to find it out. If you want to tell it to me, that is all right, but if you don't tell it to me, I will not rest until I find out, because I am nervous.' And he said: 'Go ahead.' He said: 'Go ahead.' He didn't admit that he was married. He said: 'Go ahead and find out."

Accordingly she asked Mr. Rodin to make due inquiry and let her know the truth.

The parties continued to live together. Respondent became pregnant a second time. They came out for the winter and took apartments in Seattle. On March 10, 1914, Mr. Rodin informed respondent that appellant was in truth a married man. She left him on that day. This action was begun on the 21st day of February, 1916.

Appellant contends that the cause of action accrued in September, 1913, and the parties, both being residents of Alaska at the time, are bound under the laws of Alaska, which we will enforce under Rem. Code, § 178. Counsel for respondent insists that the cause of action did not accrue until the 10th day of March, 1914.

To hold the action barred we must find that the letter hereinbefore referred to was notice, or was sufficient to put respondent upon inquiry, which would have revealed the fact that appellant was a married man. To so hold would violate the plainest principles of justice and humanity, and do violence to a settled rule of law. In matters involving ordinary contract relations a party is put to the burden of making due inquiry when apprised of facts which would lead to the truth. But the respondent is not to be so bound. The letter in itself is not notice of the fact that the 'Mother' referred to in it was the lawful wife of appellant. But for the fact that appellant had told respondent, and declared to the minister who performed the ceremony, in the presence of a witness to the marriage that he had never been married, it was not even calculated to arouse suspicion. It is not unusual to divorce a wife, or, less frequently perhaps, to desert the object of a youthful passion, as respondent assured appellant he had done. That appellant had in truth been a single man seemed most likely. In Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 14 L. R. A. (N. S.) 819, the plaintiff knew that defendant had been married, but she entered into a contract marriage with him upon his assurance that his former marriage was void and offered no obstacle to her marriage with him. He offiered to take plaintiff to the woman to whom he said he had been married in order that plaintiff might ascertain the truth of his statements. Of this conduct the court said:

'The suspicions of a trusting woman might easily be allayed by this bold offer. In a similar case the plaintiff was informed by the defendant that he was divorced, and offered to take her to his mother to ascertain the truth of his assertion. He was not, in fact, divorced, and the court said that the very boldness and audacity of the offer would naturally disarm her suspicion.'

The extreme improbability of a man of mature years contracting a bigamous marriage, when coupled with his assurance that he had never had another wife, and had not then a lawful wife other than respondent, and his implied invitation, itself an assurance of good faith, to make her own investigation, is enough to bar appellant of the defense that his fraud ripened into a cause of action at the time the letter was discovered. Appellant did what many a man has done to save his face when confronted by a doubting or angry wife. He lied to her. The law would be a thing to be despised if it were so written that one holding a confidential or fiduciary relation to another could coin a lie into a statute of limitations.

Respondent would not have been warranted in leaving appellant upon the faith of the letter considering appellant's conduct and his assurances. She was in her own mind, and upon the record as appellant had made it, his lawful wedded wife. She did no more than her duty when she trusted him.

Whatever their relations to others may have been, the principles in this unfortunate affair were not dealing at arm's length. They were conjugate; and their relations inter sese were as fiduciary as if the marriage had been a valid one. The trust of a wife is not to be swept away as a thistledown by a breath of suspicion. It is the policy of the law, for the good of society demands it, that trust and confidence between a husband and wife shall be sustained to the very limit. The fraud of appellant did not ripen in September, 1913. It had a rebirth at that time, but did not ripen into its true self until March 10, 1914. No right of action accrued until appellant had ceased to live his lie. So long as he cohabited with respondent as her husband, he continued to falsely represent, and cannot now be heard to say that respondent is barred because she believed him and in him.

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