Withee v. Brooks

Danforth, J. In this case there was a general demurrer- to the declaration, which was overruled. The exceptions state that “the [17] ground of demurrer is that the cause of action does not survive.” To that ground alone, then, are we confined whatever may bo 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 groat 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 induced to enter into an illegal and void marriage with the defendant’s intestate, whereby she lost several years of time and labor, with her share of the property left' at his decease, besides having suffered an injury to her character and great distress of mind. That such an action under the proper amendments, if any are needed, if the allegations are proved, may be maintained, can hardly admit of a question. The alleged misrepresentations contain all the elements necessary to make them actionable. They are not matters of opinion, estimate, intention, or promise; but are representations of existing facts, clear and explicit, such as were material to enable the plaintiff to act in the matter intelligently, of vital importance as the determining ground of her action and such as might well induce her belief. At the same time, they were facts necessarily within the knowledge of the defendant’s testator, and well calculated to xnoduce as a proximate result the [18] damage claimed so far as the loss of labor is concerned. Whether the other injuries would follow, or if so, would be grounds for the assessment of damages need not now be determined. It may be true that the plaintiff could not sustain an action for her labor founded upon a promise express or implied, for the reason that it was obtained from her under such circumstances as would exclude any promise. But this, if so, would only be an additional ground for sustaining this action to recover for an actual loss, caused by fraud, and for which she has no other remedy. Nor can we say that the marriage contract was the. proximate result of the fraud, for no such contract was consummated, except in form, and we must presume that defendant’s intestate knew that under the circumstances it could not be. The attempting it must have been a mere pretense to accomplish the desired end, and was an aggravation rather than a diminution of the alleged fraud, or perhaps the fraud itself accomplished by fraudulent means. The action being maintainable, it clearly survives, not at common law, but by the provisions of the statute, B. S., c. 87, § 8. It is there provided that actions of “trespass and trespass on the case shall survive.” To this there is no qualification whatever. That this action is “trespass on the case” is conceded. It therefore comes within the express terms of the statute. It is however claimed that in the case of Hovey, admr., v. Page, 55 Maine, 142, such a construction of the statute was adopted as would exclude this one from its provisions. But a more careful examination of that case will show this view of it to be an error. No construction of the statute was there attempted. The only allusion to it was, that the case did not come within its provisions. That action was for a breach of promise of marriage, and was therefore founded upon a contract. It is one of the very few, perhaps the only one, in form ex contractu, which does not survive at common law, and even that was taken out of the general rule and survived, when the declaration contained an allegation of special damage to property. Certain proof was offered, which, it was claimed, was tantamount to such an allegation, and the only question involved and discussed was, whether the testimony offered with an amendment of the declaration to correspond, would bring [19] the case within the exception so that it might survive, not by the force of the statute, but at common law. The statute, being in derogation of the common law, is undoubtedly to bo strictly construed. Still we are not, in its construction, to exclude or do violence to any of its terms, nor add any qualification not fairly found there, for the purpose of taking any particular action from its provisions. In the revision of 1841, to the words “trespass on the case” was added the clause “for damage done to real or personal property.” In the subsequent revisions that clause has been omitted. This must be presumed to have been done for some purpose. As it now stands, all actions of “trespass on the case” without modification or qualification are made to survive. The term “trespass on the case,” considering the connection in which it stands, and the purpose of the legislature as indicated by past legislation upon this subject, may be fairly construed to mean all actions of tort which are properly designated by the term, whether of injury to the property or person. This view is not inconsistent with the cases cited from Massachusetts, as they are based upon a statute materially differing from ours. Exceptions overruled. Appleton, C. J., Walton, Barrows, Virgin and Peters, JJ., concurred.