Withee v. Brooks

• Decision Date: 29 September 1875
• Citation: 65 Me. 14
• Parties: CHARLOTTE C. WITHEE v. HAM BROOKS, administrator of P. M. Withee.
• Court: Maine Supreme Court

65 Me. 14

CHARLOTTE C. WITHEE v. HAM BROOKS, administrator of P. M. Withee.

Supreme Judicial Court of Maine.

September 29, 1875

1875.

ON EXCEPTIONS.

TRESPASS ON THE CASE, declaring (inter alia ) that the plaintiff, January 3, 1868, at Winthrop, a single woman became acquainted with Parker M. Withee, a doctor, practicing medicine, then in life and health; that he contriving and designing maliciously to injure the plaintiff and to deprive her of her time and personal labor and means of support, and also, in the event of her marriage with him, to deprive her of any share of his property, and of the rights bye law of a widow in the event of his decease, falsely and deceitfully pretended himself to be sole and unmarried and making many protestations of his affections for her, requested the plaintiff to marry him; that the plaintiff consenting, the plaintiff and said Parker M. Withee were by the fraud, and deceit of said Withee joined in marriage; that she cohabited with him until July 5, 1872, when he died, possessed of personal estate of the value of $1000, and of real estate of the value of $2500; that the said Withee on the said third day of June and ever since up to the time of his death was a married man and had a lawful wife living other than herself of which she was ignorant during his life time, by means whereof he had injured her, destroyed her peace of mind, deprived her of her rights as a widow, & c., laying damages at $2000.

The defendant demurred to the declaration on the ground that the cause of action did not survive. The presiding justice pro forma overruled the demurrer and the defendant excepted.

W. P. Frye, J. B. Cotton and W. H. White, for the defendants.

In support of the cause of demurrer assigned, the counsel claimed 1, that such action is against public policy; 2, it does not survive at common law; 3, it does not survive by force of any statutory provision. They also claimed that the declaration was fatally defective in form, because it did not allege that the plaintiff relied upon the alleged fraudulent representations.

To the first point they cited, Kent's Com., 2, p. 31; Schouler's Domestic Relations, pp. 22, 23; Story's Conflict of Laws, § 108, n.; Frasier's Domestic Relations, 87.

To the second point, they cited Grimm v. Carr, 31 Penn. St. R., 533; Nersum v. Jackson, 29 Ga. 61; Watson v. Loop, 12 Tex. 11; Browne v. Sturtevant, 9 Ga. 69; Read v. Hatch, 19 Pick. 47; 14 Howard, 22.

They contended thirdly, that although this was trespass on the case, yet the provision of R. S., c. 87, § 8, that actions of trespass on the case survive, was not intended for a case like this. The statute of 1841, c. 129, § 15, added to the words trespass on the case, " for damage done to real or personal property." These words were stricken out in the statute of 1857, in the revision, c. 87, § 8. The Massachusetts decisions under a statute like ours of 1841, has received interpretations in Stebbins v. Palmer, 1 Pick. 71; Cutting v. Tower, 14 Gray 183; Read v. Hatch, 19 Pick. 47.

The principle contended for by the counsel was, that under the statutes of 1871 and 1857, interpreted by reference to the statute of 1841, though damages to the property would survive, damages to the person would not, without an allegation of special damages, and that the application of the principle was the same whether the action was in contract or tort.

The Mass. statute, 1842, providing that under trespass on the case, actions for damages to the person survive, was interpreted in Smith v. Sherman, 4 Cush. 408, to apply only to damages of a physical character. The action Hooper, admr., v. Gorham, 45 Me. 209, was for a physical injury, while this was for an injury to the feelings. The action Hovey, admr., v. Page., 55 Me. 142, decides that " an action for breach of promise of marriage, when no special damage is alleged in the writ, does not survive, and that the allegation must be of damage to the property and not to the person merely."

M. T. Ludden, for the plaintiff.

I. The question raised by the bill of exceptions is the only question open for consideration. White v. Jordan, 27 Me. 378.

II. There is no distinction between an action of the case founded on tort and trespass on the case. The difference in the form of the words is accidental rather than real. Hooper v. Gorham, 45 Me. 209.

III. A woman may maintain an action at law for the deceit by which she is led into a void marriage. Fellows v. Emperor, 13 Barb. 92. Hutchinson v. Ham, 1 Smith, 242. Lady Cox's case, 3 P. Wms., 389.

IV. Actual damages may be recovered in this action of trespass on the case, against the administrator. R. S., c. 87, § 9.

DANFORTH J.

In this case there was a general demurrer to the declaration, which was overruled. The exceptions state that " the ground of demurrer is that the cause of action does not survive." To that ground alone, then, are we confined whatever may be the formal or technical defects in the declaration.

The first objection is that the action is against public policy and could not therefore be maintained even in the life time of the wrong doer. But on what ground it is claimed to be against public policy does not distinctly appear. It is not for the purpose of annulling a marriage contract on the ground of fraud, as seems to be supposed, judging from the argument and authorities cited. On the other hand, the great cause of complaint is that, while by fraudulent misrepresentation the form of a marriage was consummated, its substance was wanting. The contract itself was illegal and void from the beginning. Thus while the offender proposed to obtain for himself all the advantages of a legal marriage, he assumed none of its responsibilities. If, therefore, the sacredness of the marriage tie is involved, it would seem to require the punishment, rather than the protection of such a violation of its sanctity; and that such is the policy of the law is made sufficiently evident from the statute providing for the punishment of polygamy.

The declaration alleges in substance, though perhaps not in form that through certain false and fraudulent representations the plaintiff was...