Hovey v. Page , 55 Me. 142 ( 1867 )

Dankorth, J.

This action was commenced by the plaintiff’s intestate in her lifetime, and is for an alleged breach of promise of marriage. That such an action does not survive at common law, without an allegation of special damage, is well settled. Stebbins v. Palmer, 1 Pick., 70; Smith v. Sherman, 4 Cush., 408. Nor does it come within the provisions of R. S., c. 87, § 8. In this case, no special damage is alleged, but there is an offer to prove, for which the same effect is claimed, "that, after such alleged promise, the deceased had a child born to her out of wedlock, now living, and that the defendant is the father of the child.” It is' not necessary now to decide whether such testimony, with or without an amendment of the declaration, would be admissible ; for we arc of the opinion that, if the facts stated in the offer were proved, there would not be snch special damage as to authorize the prosecution of the suit. In order to do so, it must be such as to affect the property and not such as is purely personal. The distinction between actions which clo not survive, and those which do, is, that the former are to recover damages to the person only and the latter damages to the property. If any others survive it is by virtue of statutory provisions. Plence, the allegation of special damage which would cause the action to survive, must be of damage to the property, and such as would be sufficient of itself to sustain a suit.

That such was the understanding of the Court in Stebbins v. Palmer, is evident from the last sentence in the opinion, by which it is left in doubt whether, in case the action survives, the plaintiff would recover any more than the damage to the property. In Smith v. Sherman, it is held, " that it must be some damage of such a character, that it might be given in evidence, to aggravate the damage in one action, or be itself the substantive cause of action, as in trespass qnare clausum, and conveying away the plaintiff’s goods.” As a matter of principle, it is evident that the effect of proof offered for the purpose of aggravating the damage, or to sustain special damage, could not be greater than if offered in a separate action, for that which is merely incidental to the principal thing must fall when the principal falls, — and that which would not of itself sustain an action would not cause one to survive which would otherwise abate. Now the testimony offered and relied upon in this case, if admissible, would increase the damages only on the ground of injury to the character and not to the estate ; nor would it of itself sustain an action, for, if seduction is relied upon, the plaintiff’s intestate, if living, would have no legal cause of complaint. Paul v. Frazier, 3 Mass., 71. If the expense of supporting the child is relied upon, the only remedy is that provided by statute. 2 Kent’s Com., 215.

Plaintiff nonsuit.

Appleton, 0. J., Cutting, Walton, Dickerson and Tapley, JJ., concurred.