Harrison Ferguson and Lizzie Seymour intermarried October 27th, 1891, and cohabited as man and wife until the death of the latter, April 26th, 1893. At the time of the marriage and during its continuance Lizzie Seymour had a lawful husband living; she induced Ferguson to marry her hy falsely representing to him that she was a single woman, and thereafter and until her death caused him to believe that he was her lawful husband; during this cohabitation he, relying on the said representations, furnished her with board, lodging, medical attendance and other necessaries, of the value, in the whole, of $749.51. Upon the death of Lizzie Seymour the estate was represented hy the administrator to be insolvent, and commissioners thereon were appointed. Ferguson presented to the commissioners a claim against the estate, based on the above facts. The commissioners allowed on this claim the sum of $429.77. Robert Payne, a brother, heir at law and creditor of the intestate, appealed to the Superior Court from the doings of the com
The presentation of the claim is, in effect, an action by Ferguson against the administrator of Lizzie Seymour’s estate; the appellant in error represents the plaintiff, and the appellee in error the defendant; the judgment sustaining the demurrer is a judgment that the plaintiff, on the facts recited, has no cause of action against the defendant.
It is claimed on behalf of the plaintiff that these facts show he had a cause of action against Lizzie Seymour during her life; that such cause of action was essentially and in substance for a breach of contract obligation implied by law from the facts, and therefore survived against her administrator. It is claimed on behalf of the defendant that the plaintiff, for the special redress sought in the claim, had no cause of action against Lizzie Seymour during her life; or, if such cause of action existed, it was for a private wrong or injury to the person, and therefore does not survive against the administrator.
In discussing whether the plaintiff had a cause of action against the intestate during her life for the special redress now sought, the determination of the nature of such cause of action, i. e., whether founded substantially on a private wrong, or on some contract or quasi contract' obligation, is necessarily involved. The precise question therefore presented is this: Does a man living with a woman in the relation of husband and wife have, under any circumstances, unless by virtue of some express agreement, a right of action against the woman for the value of shelter, food and clothing given her during the continuance of that relation ?
The statement of the question would seem to compel an answer in the negative. The relation of husband and wife
In this case no possible doubt could arise except for the confusion caused by the peculiar nature of the legal status of husband and wife. The relation of husband and wife, i. <3., the cohabitation as man and wife, is a question of fact determined by the will of the parties; the status of husband and wife is a question of law determined by the absolute mandate of the State. The status may exist in law without the relation in fact; and the relation may exist at the will of the parties independently of the legal status, and is then unlawful so far and only so. far as illicit intercourse is involved. The existence in fact of that relation, on general principles of law, expressly negatives any cause of action in one against the other for the value of the reciprocal gifts of support and service, whether the relation as carried on is legal or illegal. It may be knowingly illegal on the part of both, or innocently illegal on the part of both, or innocently illegal on the part of one only; but in either case the legal effect of the reciprocal gifts of one to the other is determined by the fact of the relation and is the same; except that when the relation is coincident with the legal status of husband and wife, such gifts rest not only on a mutual understanding proved by the fact of the relation, but also on the duty involved in the existence of the legal status. Robbins v. Potter, 11 Allen, 588.
But it is said that in this case the woman has deceived the man into falsely assuming the legal status of husband, and so has done him a great injury. True. And just here
What is this wrong? The overt act is a deception, a false statement. A false statement made by one and believed by another is not, per se, a legal injury and actionable. If the false statement is the direct means of obtaining the property of another, there is a legal injury to rights of property, and the owner has an action for the property or its value, based on the fraud, and also in some cases on the implied contract to return property, or the proceeds of property, which legally or equitably belongs to another. But here the false statement as to the legal status of the woman was not the direct means of obtaining any property; it was the direct means of inducing the man to take part in the legal form of marriage. The form was a nullity. No property was or could be thereby secured. But the wrong was complete, the legal injury was inflicted, the moment this invalid marriage was consummated. The injury may continue, and subsequent events may aggravate the resulting damage, but they cannot change the nature of the wrong, or alter the legal injury which is the cause of action. The legal injury is not to property, but to the person, and is of a nature entirely sui generis, owing to the peculiar nature of the legal status of husband and wife, and the far reaching and complex personal interests that depend on the maintenance and due observance of that legal status. The family is the foundation of society; the status of husband and wife is fixed and regulated by the State by virtue of its inherent right to set'tle the foundations of social order. Indeed the family and the obligations and privileges pertaining to it reach back of all State regulations; the family develops the State and is coincident with the birth of man. It is evident that the direct injury resulting from inducing a man to falsely assume the status of husband is one absolutely unique and far reaching in resulting damage. It may involve establishing a family
In this case the deception which caused the actionable injury relates to the legal status of the woman; suppose it related to her birth. She .represents herself of pure white blood, when in fact she is partly of indian or negro blood; the man claims that he would not have lived with her unless he had believed this false statement, and that his association with a half-breed has been an injury to him in many ways. Or suppose she falsely represents herself as not related to him, when she is in fact his sister, does the fact that she has deceived him into unconscious participation in the crime of incest give him an independent cause of action for alleged loss on the exchange of materials and services which he would not have entered into had he not been so deceived? Or, test the principle claimed by an application to conditions free from all complication with the marriage relation. A banker is deceived by an adventurer into believing him to be the officer and agent of a foreign bank; influenced by this deception he accepts the position of agent for the bank, holds himself out as such agent, makes contracts in the name of the bank, and when the deception is discovered has suffered a grievous loss in money and reputation. During the continuance of the relations between him and the adventurer, the supposed officer of the foreign bank, and in pursuance of a custom prevailing when such relations exist, he has made an exchange of presents with the adventurer. He finds the value of the presents sent exceeds the value of the presents received. Does the original deception as to the legal position of the adventurer, by which he was drawn into assuming a false position so disastrous to him, furnish an independent cause
The analogies are not complete, and herein lies the difficulty of demonstrating the principle which should control when a man, deceived into a false assumption of the status of husband, and into unconscious participation in the crimes of adultery and bigamy, and'suffering the irreparable injuries involved in such deception, alleges this deception or this injury as ground for recovering an alleged balance on the exchange of gifts while living with the woman who inflicted the injury. There is no analogy to such a case. And so far as we know such a case has never been presented to a court. The question has been discussed in a few cases, where a woman who has been thus injured and, shut out from all redress for the injui’y by the death of the man, has sought to make his estate liable for the value of her services. We believe this is the first instance where such a claim has been made by a man ; and have no knowledge that such action by either man or woman was ever brought during the life of the wrong-doer. A court might be excused, when the perpetrator of such an injury has escaped punishment in life, for being acute in seeking reasons for making the estate liable for some small fraction of the resulting damage, especially when the claim is presented by a woman whose sufferings from such an injury are liable to be so much more severe; but cannot be excused for pushing such acuteness into the region of fallacy.
The case of Higgins v. Breen, 9 Mo., 497, sustains the theory that a woman may recover the value of her services against the estate of the man who has deceived her into a false marriage, if on the whole they were valuable. The Supreme Court of Massachusetts in an opinion which suggests the views we have indicated, upholds the opposite theory. Cooper v. Cooper, 147 Mass., 370; Grim v. Carr, 31 Pa. St., 533 ; Price v. Price, 75 N. Y., 244. But all courts agree that such action cannot be brought against the estate of the wrong-doer, if the cause of action is in substance for the recovery of damages from a tortious injury to the person,
The question has never been decided in this State, and may therefore be determined wholly on principle. For the reasons stated, we think the true application of the legal principles under which rights are defined and causes of action are classified, to the confusing complication of ordinary rights with the peculiar legal status of husband and wife involved in this question, justify the following conclusions: The deception by which a married woman induces a man to falsely assume and maintain the status of her husband, is an injury to the person complete with the consummation of the void marriage. Such injury gives to the man a right of action against the woman for damages resulting from such false assumption of the status of husband. A pecuniary loss sustained by having in fact lived with a woman in the relation of husband and wife may be considered in estimating the damages caused by this injury; but such loss, if it can be recovered at all separate from all other damage, can only be so recovered in an action based on the original wrong, in which the plaintiff abandons all claim to any resulting damage except this incidental loss; and therefore the substantial cause of the only action in which such loss can be separately recovered, is the deception by which the plaintiff was induced to falsely assume the legal status of a husband. Such cause of action is founded wholly on a private wrong, and under existing law cannot survive against the legal representatives of the perpetrator.
It follows from these conclusions that Ferguson had no cause of action against Lizzie Seymour during her life for the claim he now presents against her estate, unless such claim is for damages resulting from an injury to the person, and in that case the cause of action does not survive against her administrator.
The plaintiff, in support of his claim, invoked in argument the principle that where property has been acquired by means of a tort, there may result a duty, imposed by law on the wrong-doer, of returning the property or its proceeds, which
Such principle does not conflict with the substantial distinction between rights founded in tort and in contract — a distinction ordinarily of easy application. Doubts arise only where a transaction lies within that field, of necessity a shadowy one, where the essential element of the right passes from the domain of tort to that of contract. The principle invoked has been somewhat obscured by distinctions not of substance but of form, resulting from technical rules developed in the use of an arbitrary and artificial system of forms of action, now happily obsolete; and has been most frequently appealed to when a claim, as in this case, is sought to be enforced against the estate of a deceased person, and the liability of the estate depends upon the question whether the cause of action that existed against the person deceased was in substance founded in tort or in contract.
When such cases first arose an attempt was made to make the artificial form of action usually adopted rather than the substantial cause of action, the test of a survival of the suit. In the case of Hambly v. Trott, 1 Cowp., 374, Lord Mansfield established the sound rule that in such eases the substance and not the form might control; but in the ardor of vindicating his position he used language and illustrations that led others to draw conclusions the decision did not justify; and Judge Swift in his Digest relies on this case in support of a broad statement of the rule. 1 Swift’s Digest, 448. In Phillips v. Homfray, L. R., 24 Ch. Div., 439, the language of Lord Mansfield was pressed in support of the claim that when, by means of a tort, the wrong-doer benefits himself and saves the payment of money he might otherwise have paid, although no specific property is acquired and added to his estate, yet a right of action for the amount of such benefit survives against the executor of the wrong-doer; but the court held that Hambly v. Trott did not justify such claim.
The principle involved is: In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrong-doer the duty of returning that prop
Substantially the same view was stated by this court in Mitchell v. Hotchkiss, 48 Conn., 16. “ All private as well as public wrongs and crimes are buried with the offender. The
There are indications in the opinion of the court, in some cases, of a theory that a tort may affect property in such manner that no action for any breach of contract or quasi contract can be maintained against the wrong-doer during his life, and yet after his death the retention by his executors of the resulting benefits of the wrong, may give rise to a cause of action substantially in contract against the executor, which did not exist against the testator. None of the authorities cited deal directly with such a theory, and such question is not raised in this case.
The principle the plaintiff invokes does not apply to his case; because during the life of the intestate he had no cause of action against her except for damages resulting from a private wrong; the injury he suffered was a personal injury, and if a consequential damage to his personal estate followed the injury, it was so dependent upon and inseparable from the personal injury which is the primary cause of action, that there is no right to maintain a separate action in respect of such consequential damage. Drake v. Beckham, 11 Mee. & Wel., 316; Vittum v. Gilman 48 N. H., 419. The real reason and only ground in this and similar cases for the claim that the substantial cause of action is a breach of contract, is to be found in the mandate of the law which says that public crimes and private wrongs shall be buried with the offender. If the law were different; if the liability of • an administrator were the same as that of his intestate when
The bill of particulars contains one or two items of small amount which may raise a question of liability not met by the demurrer; but we understood such question to be withdrawn during argument, and we do not think it is properly presented by this appeal.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.