Warner v. Benham

• Decision Date: 12 September 1923
• Docket Number: 17982.
• Court: Washington Supreme Court
• Parties: WARNER v. BENHAM.

218 P. 260

126 Wash. 393

WARNER v. BENHAM.

No. 17982.

Supreme Court of Washington

September 12, 1923

Department 1.

Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge.

Action by Ruth Agnes Warner against Albert Benham. On defendant's death, Frank D. Allen, administrator, was substituted. Judgment for defendant, and plaintiff appeals. Affirmed.

Danson Williams & Danson and R. E. Lowe, all of Spokane, for appellant.

Allen Winston & Allen, of Spokane, for respondent.

BRIDGES J.

Suit for damages resulting from a breach of promise of marriage. The complaint alleged the promise of marriage, sexual relations resulting therefrom, the breach of the promise, the wealth, prominence, and social standing of the defendant. Pending the trial he died, and the only question before us is whether the cause of action was buried with him. The trial court held that it was. Actions of this character by or against the personal representatives of deceased persons were not permitted at common law, and have seldom, if ever, been permitted in this country. We do not understand that the appellant seriously disputes these statements, but she does contend that this doctrine of the common law 'is barbarous' and violates the spirit of our institutions, and ought not to be followed by the courts, and that, in any event, the rule of the common law has been so changed by statute in this state as that such actions are maintainable.

In breach of promise of marriage suits, the characters of the individuals are at stake, and, inasmuch as character is the most valuable possession of a man or woman, living or dead it is at least a debatable question whether suits of this kind ought, in fairness, be maintained after the death of one of the parties. The common-law rule governing these matters has not heretofore been considered by the courts of this country as being against that spirit of fair play which forms so prominent a part of our institutions. Since the common law is made the law of this state except where changed by statute, we are of the belief that such actions are not maintainable unless permitted by statute.

The appellant chiefly relies on section 141 of the 1917 Probate Code (section 1518, Rem. Comp. Stats.), reading as follows:

'Action for the recovery of any property or for the possession thereof, and all actions founded upon contracts may be maintained by and against executors and administrators in all cases in which the same might have been maintained by and against their respective testators or intestates.'

This provision of the new is copied from the old probate statute. See Rem. Code 1915, § 1535. It has been a part of our statutes from a very early date. The records of this court show that never before has a suit of this character been maintained here by or against the representatives of deceased persons. It would seem, therefore, to be a fair presumption that the bar of the state has not heretofore supposed that the statute quoted authorizes the maintenance of such suits. However, the respective attorneys to this appeal have elaborately and learnedly presented the matter, and it must be conceded that it is not without its difficulties. After a thorough review of the authorities and a painstaking consideration of the statute and its purposes, we have concluded that the expression in the statute that 'all actions founded upon contracts' may be maintained by and against executors and administrators has no reference to such a contract as the one contemplated by a promise of marriage. While, under the law, that agreement is a civil contract, it is also both much more and much less than the usual contract. It is purely personal; it does not affect property; it is not assignable; rights under it may not be inherited; it concerns one's state of mind rather than his estate; we never look upon the relationship as one of contract in the sense that word is generally used. For its breach the measure of damages is entirely different than in cases for the breach of ordinary contract. The damages are not, as usual, limited to the natural consequences of the breach. The character, the chastity, and social standing of the plaintiff, the extent of the injury to her personal feelings and pride, the amount of her mental suffering, the age, wealth, and social standing and motives of the defendant--all these features may be taken into consideration in fixing the compensation. Promise of marriage may be a contract, but it is one forming its own class, and in its essential features greatly differs from all others. Our views on this breach of the case are so well expressed by Mr. Justice Snyder in Flint v. Gilpin, 29 W.Va. 740, 3 S.E. 33, that we quote therefrom:

'Marriage is undoubtedly a civil contract, because consent is necessary to its legal validity, but in its nature, attributes and distinguishing features it is sui generis. It is declared a civil contract for certain purposes, but it is not thereby made synonymous with the word contract employed in the common law or statutes. It may be entered into by persons during their minority, and cannot, when consummated be dissolved by the parties. It is more than a contract. It requires certain acts of the parties to constitute marriage, independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community. The relation of the parties is essentially personal. Neither the rights, duties nor obligations created by or flowing from it can be transferred, and an action for a breach of promise to marry, in its main features, has very little resemblance to other contracts. In the latter the damages are limited by fixed rules to the pecuniary loss sustained, while in the former the damages are in the discretion of the jury to the same extent that they are in strictly personal actions, such as slander, malicious prosecution, assault and battery and the like; and the recovery may be, and usually is, principally for injured feelings, anxiety of mind, wounded pride and blighted affections. In the own case the motives for the violation or breach are immaterial, while in the other the motives and conduct of the defendant and other extrinsic circumstances may be given in evidence, in mitigation of aggravation. * * * The controlling consideration in this action is, that it does not relate to property interests, but to injuries to the person; and the compensation or damages for which the recovery is had consists entirely of personal suffering unconnected with the rights of property.'

The same view is taken by nearly all of the courts which have discussed this question, and may be found in most of the cases which we will hereinafter cite. Indeed, this court, in Rieger v. Abrams, 98 Wash. 72, 167 P. 76, L. R. A. 1918A, 362, said:

'While an action to recover damages for breach of promise of marriage, in a technical sense, arises out of the breach of a contract obligation, it is in its essence an attempt to recover for a tortious wrong'--quoting to the same effect from Sedgwick on Damages and Sutherland on Damages.

The only cases which have arisen in this country where suit of this kind was sought to be maintained by virtue of a statute similar to ours are Flint v. Gilpin, supra; Grubb's Administrator v. Sult, 32 Grat. (Va.) 203, 34 Am. Rep. 765; Wade v. Kalbfleisch, 58 N.Y. 282, 17 Am. Rep. 250.

The statute involved in the last-cited case (2 Rev. St. 113) provided that actions on account and 'all other actions upon contract may be maintained by and against executors in all cases in which the same might have been maintained by or against their respective testators.' It will be observed that there is no material difference between this...