Pray v. Millett

Decision Date27 November 1922
Citation118 A. 721
PartiesPRAY v. MILLETT.
CourtMaine Supreme Court

Exceptions from and on motion in Supreme Judicial Court, York County, at Law.

Action by Amelia F. Pray against Florence Millett. Defendant excepts to refusal of directed verdict, and moves for new trial. Verdict set aside, and motion for new trial sustained.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Willard & Ford, of Sanford, for plaintiff.

Edward S. Titconib, of Sanford, and Emery, Waterhouse & Paquin, of Biddeford, for defendant.

DUNN, J. In this case one woman has sued another woman for alienating her husband's affections and recovered a verdict The statute upon which proceedings are based, in prescribing a mode for enforcing the right which it creates, directs that action shall be "brought * * * within three years after the discovery of such offense." R. S. c. 66, | 7.

A special remedy given by statute upon particular facts is subject always to the conditions and limitations which legislative wisdom incidentally defines. Hence a plaintiff so circumstanced must allege and prove every fact thus made a prerequisite for laying a claim to the remedy provided. Cape Elizabeth v. Lombard, 70 Me. 396; Peru v. Barrett, 100 Me. 213, 60 Atl. 968, 70 L. R. A. 567, 109 Am. St Rep. 494; Karahalies v. Dukais, 108 Me. 527, 81 Atl. 1011; 36 Cyc. 1188.

For the reason that the statutory provision relied on constitutes it an essential part of the cause that she would make, this plaintiff must allege and prove the alienation of the husband's affections as of a day within three years of the date of the writ, or, alleging the alienation as of a day before that time, then she additionally must allege and show that the discovery thereof by her was within three years of the bringing of the action. Her allegation of the alienating is laid within three years of the writ's date, but she falls far short of showing, either by direct evidence, or by inference from the circumstances in evidence, that her discovery of the alienation was within that time. Indeed, that the plaintiff could first have maintained an action against the defendant, for the loss of the husband's consortium, sooner than three years before the suing out of the writ is so clearly established by the proof as to justify the assertion that the statement scarcely is disputed on the record.

This plaintiff married one William Pray. Eventually they made their home at Everett in Massachusetts. While living together there, 15 or more years ago, an attending physician commended the defendant for employment, she being a nurse and masseuse. Mr. Pray employed her. She cared for him and his wife, intermittently, for a time. Through two summers the defendant was hired to assist Mrs. Pray with the housework at the latter's farm in Lyman, Me. Upon returning to Massachusetts at the end of the second season, the defendant became a clerk in a Boston store. Afterward Mr. Pray left for Georgia to spend a winter. His wife neither accompanied nor came to him. When he was there the defendant also went to Georgia. She says that her going was at Pray's request to act as his nurse, Mrs. Pray approving. Defendant was back home again, following a stay of several months in the South, before Pray was. The next winter these two went to Georgia together. In a different town than that in which they formerly were they occupied the same suite at a hotel, the defendant coming to be well known in the community as Mrs. Pray. In the following summer they were at the farm in Lyman. The next winter found them in Georgia. Mrs. Pray's time was passed partly in Massachusetts and partly in California. Matters went long without any especial variance until Pray's death in 1921, except that he and the defendant were in Portland the last two winters that he lived, a small boy relative of the woman's living with them. During these winters they stayed at two hotels, and at one of them at least they were registered by him as "William Pray and party." Defendant says that Pray paid her for her services as "nurse and housekeeper—but not by salary."

Mrs. Pray's own testimony, to say nothing at the moment of the corroboration that it has, convincingly demonstrates that this action was...

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2 cases
  • Bellegarde Custom Kitchens v. Leavitt
    • United States
    • Maine Supreme Court
    • October 25, 1972
    ...the Court is without jurisdiction to entertain such an action as this when the period of its availability has expired. Pray v. Millett, 122 Me. 40, 118 A. 721 (1922); Andrew v. Bishop, We have no doubt but that a statute which creates a right of action for a materialman to take the property......
  • Kimball v. Cummings.
    • United States
    • Maine Supreme Court
    • October 10, 1949
    ...remedy given by statute upon particular facts and is subject to the conditions and limitations defined by the Legislature. Pray v. Millett, 122 Me. 40, 118 A. 721. The essential part of the statute relating to this action directs that action shall be ‘brought * * * within 3 years after the ......

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