Thorne v. Farrar

• Court: Washington Supreme Court
• Writing for the Court: GOSE, J.
• Citation: Thorne v. Farrar, 57 Wash. 441, 107 P. 347 (Wash. 1910)
• Decision Date: 23 February 1910
• Parties: THORNE v. FARRAR.

107 P. 347

57 Wash. 441

THORNE v. FARRAR.

Supreme Court of Washington

February 23, 1910

Department 1. Appeal from Superior Court, King County; Arthur E Griffin, Judge.

Action by Herbert E. Thorne against Ruth Farrar, commonly known as 'Ruth Thorne.' From a judgment of dismissal plaintiff appeals. Affirmed.

Vince H. Faben and S. H. Kelleran, for appellant.

James M. Gephart and Charles E. Patterson, for respondent.

GOSE J.

This is a suit in equity brought for the purpose of annulling a marriage on the alleged ground of duress. At the close of the plaintiff's evidence, a judgment of dismissal was entered on the insufficiency of the evidence. The plaintiff has appealed.

The duress alleged in the complaint is that an attorney and a police officer, at the instance of the respondent, for the purpose of coercing and intimidating the appellant to enter into a marriage contract with the respondent, made threats to the appellant 'that they would continue and complete a certain criminal action then pending, wherein the plaintiff was charged with criminal seduction of a female under the age of 18 years, and that said defendant was the female referred to; that the respondent wrongfully charged that the appellant was the father of an unborn child of which she was soon to be delivered; that a warrant had been issued and was in the hands of the officer; that she placed the appellant under arrest in virtue of the warrant, and compelled him by fear of a criminal prosecution to enter into the marriage relation; that she represented to the appellant that she was under the age of 18 years, when in fact she was of the age of 19 years.' The respondent joined issue on the allegations of duress and misrepresentation. Our statute (Pierce's Code, § 6262 [Ballinger's Ann. Codes & St. § 4477]) provides that a marriage is voidable at the suit of the injured party 'when the consent of either party shall be obtained by force or fraud.' The statute does not define the kind or degree of force or fraud required to annul a marriage. Similar statutes, however, have been construed as being merely jurisdictional, and to mean that kind of force and fraud defined by the unwritten law applicable to marriage contracts. Franke v. Franke (Cal.) 31 P. 571, 18 L. R. A. 375; Bishop, Marriage & Divorce, §§ 475, 478; Foss v. Foss, 12 Allen (Mass.) 26.

The record discloses: That the appellant was twenty-six years of age at the time of the marriage. That the day preceding the marriage an attorney and a police officer, or one believed by the appellant to be such, called upon the appellant at the place where he was working. That the attorney said to him: 'You have been intimate with a certain young lady that you know. You understand what I mean. There is no need of my explaining these matters.' That the attorney 'gave him to understand' that the respondent was under age, and that her mother had caused a warrant to issue for his arrest charging that the appellant had 'been intimate' with the respondent. That he then inquired whether appellant would marry her, to which the latter replied that he would not. That the officer then approached, and said: 'Do I understand you refuse to go?' That the appellant answered that he did. That the officer then showed a badge which the appellant believed to be the badge of an officer, saying, 'I am here to see that you do go.' The appellant further stated that he, the attorney, and the officer then went to the home of the respondent; that her mother asked him if he intended to marry the respondent, he answering that he did not; that she then said, 'Well, if you don't, I will start criminal proceedings against you'; that thereafter a general conversation took place from which the witness 'understood' that, if he did not marry the girl, he would be sent to jail or the penitentiary. The appellant then agreed with the respondent and her mother that he would go with them to Tacoma on the following day, procure a license, and have the marriage ceremony performed. This arrangement was carried out, the appellant meeting the respondent and her mother the next morning at 9 o'clock at the depot, where they took the train to Tacoma, procured a license, and secured a minister who united the appellant and the respondent in marriage. After the marriage ceremony had been performed and after the three had lunched together, the mother returned to her home, and the appellant and the respondent repaired to a sleeping room in the hotel, which the former had procured, and remained there for several hours, returning to her home late in the afternoon, where they had dinner. The parties have not lived together as husband and wife, and the appellant asserts that they have not cohabited since the marriage.

There is no claim that either the officer or the attorney saw the parties after the appellant agreed to the marriage on the evening preceding its celebration, or that he was under any restraint after that time. Nor is there any evidence of an arrest other than a constructive one. Do these facts constitute duress? We think not. Whatever construction the appellant may have given the language or the conduct of the officer and the attorney before he went to the home...