Libby v. Berry

• Decision Date: 05 January 1883
• Citation: 74 Me. 286
• Parties: SARAH L. LIBBY v. THADDEUS C. S. BERRY.
• Court: Maine Supreme Court

74 Me. 286

SARAH L. LIBBY v. THADDEUS C. S. BERRY.

Supreme Judicial Court of Maine.

January 5, 1883

ON REPORT.

The writ is dated March 4, 1881, and the declaration is as follows:

" In a plea of the case, for that the said defendant, at said Houlton, to wit, at said Bangor, on the fourth day of March, 1877, the plaintiff being then and there a married woman, by the name of Sarah L. Given, and being pregnant with child, unlawfully used upon her, so being pregnant aforesaid an instrument whose name is to the plaintiff unknown, and inserted the same into her body, through and by the passage called the vagina, with intent to procure the miscarriage of herself, against her will and consent, her then husband James C. Given, being then and there present, compelling and coercing her to endure the use of said instrument by the defendant, as aforesaid.

And the plaintiff avers that she has since been legally divorced from her said husband, and resumed her maiden name; that she was greatly injured by the defendant, by the use of said instrument as aforesaid; that her health was very much injured thereby and she has suffered great pain of body and mind also, by means thereof.

Also for that the defendant at said Houlton, to wit, at said Bangor, on the sixth day of March, 1877, unlawfully did use a certain other instrument unknown to the plaintiff, upon the plaintiff, there and then being pregnant with child, by inserting the same into her body, with intent to procure the miscarriage of the plaintiff. And the plaintiff avers that she was greatly injured by the defendant, by the use of said instrument as aforesaid; that her health was very much impaired, and she has suffered intense pain of body and mind thereby."

The plea was not guilty

At the trial, after the plaintiff had testified to the acts alleged in the declaration, the parties agreed to report the case to law court to determine whether the action could be maintained. If not, nonsuit was to be entered, otherwise the action was to stand for trial.

A Sanborn, for the plaintiff.

Stat. 1876, c. 112, expressly gives the plaintiff the right to maintain this action. Abbott v. Abbott was sound as the law stood in 1869, and down to the act of 1876.

That case was governed by the common law which forbade it; this is governed by the statute law which upholds it.

Wilson and Woodard, for the defendant, cited: Abbott v. Abbott, 67 Me. 304; Smith v. Gorman, 41 Me. 405; Dwelly v. Dwelly, 46 Me. 377; Crowther v. Crowther, 55 Me. 358; Hobbs v. Hobbs, 70 Me. 381; Com. v. Parker, 9 Met. 263; Smith v. State, 33 Me. 48; R. S., c. 124, § 8; Add. Torts, 691; Christophenson v. Bare, 11 Ad. and El. 473, (63 E. C. L. 473); Broom's Leg. Max. 204; Emerson v. Balch, 5 Dane's Abr. 566; Fitzgerald v. Cavin, 110 Mass. 153.

SYMONDS J.

The opinion in Abbott v. Abbott, 67 Me. 304, is decisive against the right of the plaintiff to recover, unless the change in the law introduced by the later act of 1876, c. 112, is such as to sustain the action.

But the amendment of 1876 has been held by the court, in Hobbs v. Hobbs, 70 Me. 381, to relate to " cases where by the very assumption the husband may be a party with the wife or not, at her election. The design is to protect her from all marital interference in suits commenced by the wife alone or jointly with her husband, and to prevent his maintaining alone any action respecting his wife's property." Smith v. Gorman, 41 Me. 405, 408; Crowther v. Crowther, 55 Me. 359.

It is clear that in the case at bar the husband could not be a party plaintiff with the wife, for he was the principal and the defendant the agent in procuring the wrong to be done.

According to the construction already given to the act of 1876,...