*1 duty is said: ‘The requires to look and listen the traveler to exercise position care to select a frdm which an effective observation can made. looking The mere fact of listening always duty a full observance of the incum- bent traveler, for he must care exercise to make looking listening reasonably act of effective, must usually continue to be on the lookout and exercise his faculties ” until he has Monongahela Ry. crossed.’ Robertson v. & Co., 99 W. Va. 128. E. 829. S. ruling of the circuit court is affirmed.
Affirmed. Rose M. R. Cameron v. Earl Cameron
(No. 7072) October 1931. Submitted Decided December *2 in error. Gillespie, L. John Spilman, for defend- Beverley Price, & Broun and Smith in ant error. President:
Litz, May instituted tresspass on the case This is action county, Kanawha pleas in common the court of Cameron, husband, Earl by against her former Cameron Rose in upon him her damages practiced by to recover actively marriage, in securing an their annulment of her remarriage, barred concealing until which the fact his ruling of the To the subsequent suit to vacate the decree. declaration, she sustaining a court, trial demurrer to the prosecutes error. controversy having considered been heretofore twice history necessary to an
by recital of its this court a brief Plaintiff married understanding present action. 24, 1900. entered into George Lumley, December- She believing marriage defendant, February 19, 1921, with second obtained a valid divorce good in faith at the time that she had proceeding in there- April 29, 1910, a divorce Lumley, from against in by her him circuit court tofore instituted the. Boyd Kentucky. 24,1923, Cameron instituted county, October pleas Kanawha against court of common suit her ground marriage county with him on the to annul her Lumley celebra- at the time of its was not she divorced behalf, a being made on her decree of appearance tion. No February Plain- cause was annulment entered together as husband lived and cohabited tiff and defendant pendency of the suit and thereafter until and wife Grigg. July intermarried with Ruth 10, 1925, when he about Kentucky court entered a decree 20, 1925, November plaintiff hone, dissolving between pro nunc judg- reciting sueb Lumley April 29, 1910, after which, date, on the latter ment had been rendered the cause On through oversight, previously been entered. had not brought chancery suit 29,1926, March Rose Cameron county vacate the Earl in of Kanawha to the circuit court induced ground that had been annulment decree on the by forego defense to representations fraudulent representa- proceeding because of his false had been abandoned tions her after decree that the suit charged her with the fraud and dismissed. He denied delaying suit. laches the institution of dismissing bill, on the ruling court, the circuit Kentucky ground in the that no had been rendered cause court, and proceeding, reversed divorce laches hearing of fraud and remanded for the issues Va. 621. Ruth bill, proof. 105 W. raised answer and stating petition in cause G-rigg Cameron then filed a *3 the wholly ignor- marrying Cameron, , that she was at the time claim, upon by him Rose any practiced of fraud ant of fraud or rights as his law- Cameron, praying and status and that her circuit court recognized preserved. The ful wife be charge fraud exonerating him decree, a of the then entered convicting plaintiff decree, procuring the annulment Upon dismissing her bill. bringing suit, laches overruling court, appeal, majority a of this the second fraud findings court, held that foregoing of the circuit im- deception and established; of his that because had been asserting laches from plaintiff precluded was position upon he to costs was, therefore, entitled her, against and that Grigg, marriage to Ruth But, against him. because of decree of refusing cancel the unanimous, in to the court followed. annulment. This action (1) are to the declaration grounds of demurrer electing equity for restoration by sue to for maintain an action estopped to marriage relations fraudulently procuring damages defendant charged constitutes (2) annulment; that the decree of coverture, against by him committed a tort wrong; legal amount to a law, does not common and, under the (3) that if the fraud was consummated as result annulment, remedy has terminated under the statute of limitations.
Sufficient ground answer' to the first of demurrer is that party estopped is not maintain a second suit unless the two substantially suits scope have aim same and the remedy sought substantially in each. 9 R. C. L. same 464. Moreover, proceeding ap- the annulment was the propriate remedy in “A the first instance. of divorce by obtained testimony husband in a false suit which the defend, applica- wife failed to will be vacated on the wife’s tion, irrespective default, of the wife’s for her excuse party state was an suit, interested and its interests imposed upon by husband, had been re- the conduct of the quiring rights Jones, that its be vindicated.” Jones Atl. 819. In opinion it is said: is another court “There requires consideration which this decree be vacated. party The state is interested to the suit. Its interests imposed have been the malevolent conduct of the petitioner, public policy rights vin- demands that its ’’ dicated. practiced by spouse against securing
Fraud one the other in legal wrong serving dissolution of the is a often as the basis of a suit to vacate fraudulent decree. and, therefore, fraud is consummated until does not exist dissolving marriage. A the decree damages action at law to recover fraud aecures when the necessarily consummated, before; or, fraud is and not more briefly stated, fraud dates its consummation and not origination happening from its or from the of circumstances *4 development. Corpus or in the course of its 27 incidents 20; 935; Phelps County Bishop, Corpus Juris 37 68 Juris proposition: Suppose Mo. 250. To further the fraud test by spouse committed one the other coverture in actionable, plaintiff could this case have before the sued marriage injury was What had she suffered the dissolved? ground of time? of the action deceit is before that “The damage, and when both concur the action will fraud and Moreover, both must concur to constitute actionable lie.
379 being neither fraud, that a common statement of tbe rule damage is sufficient damage, fraud without nor without injury 12 Plaintiff’s support an R. C. L. 239. action.” precede entry of the annulment did not but followed the marriage. be then can it decree or dissolution of the How of marriage said still existent at the time that status was after, complained of, occurred sustaining injury, the which entry of annulment decree? of, result the the was opinion of limitations We are of that statute the suspended to the from annulment decree of the appears Grigg July, It of Cameron to Ruth fraud allegations from that defendant’s declaration of.the in actively concealing plaintiff continued facts plaintiff was Although until mariage. date of said v.Cameron, 107 guilty (Cameron Grigg laches of as to Ruth 655; W. 225), Va. E. Cameron’s continued S. (It was
operated plaintiff as to him. to relieve the of laches rights Grigg of Cameron intervening because of Ruth cause.) chancery denied light general said, in the principle On it must be the same declaration, persis allegations Cameron’s plaintiff operated to toll tent fraudulent conduct toward the statute limitations. institu- remedy having prior to the been terminated not decree, chancery cancel tion of suit to proceeding statute. pendency of also tolled the 1931), (55-2-18, Code Chapter 104, section Code time, provides: any “If action within due commenced defendants, plaintiffs or more the name of or one or by inhabitant, or one of return no abate as to .them if, in action marriage, an commenced his or her death or or proceed- time, judgment (or other further Avithin due reversed, on ings) plaintiffs be arrested or for the should same ground preclude a new action which not does bring by reason cause, if occasion a new suit or be there security having for want of cause been dismissed the said any cause, which other could costs, reason or any action, loss or destruction plead in bar in due which was a former suit papers or records *5 380
time; every notwithstanding expiration case, such the time within which a action or must otherwise new suit may brought year brought, have been within one the same abatement, cause, after such dismissal or other or after such judgment, arrest or reversal of or such loss or but destruction present brought year not after.” The action was within one chancery from the dismissal of cause. defendant, by fraudulently concealing
Furthermore, entry decree, prevented plaintiff securing prior cancellation institution of suit to his its remarriage. alleges during pendency
The declaration intervening annulment suit and the between time discovery thereof, the annulment decree and after remarriage, live to and defendant continued to gether wife, at all assured as husband and and that he times allega her the suit had been abandoned and dismissed. This brings setting up fraud, tion his active concealment of the limitations, exception within the ease statute provides right wherein it if a of action “shall accrue person state, who if had before resided such person shall, by departing same, without the or abscond means, by any ways ing concealing himself, or or other indirect * * * prosecution right, obstruct such the time may shall com that such obstruction have continued not be any puted part of within which the time the said ’’ might ought prosecuted. Chapter 104, or to have been section (55-2-17, 1931.) person by 1923 Code Code “When any ways prosecution indirect or means obstructs the right, the which such obstruction continues shall time computed periods prescribed limitation in Code not be Reynold’s Gawthrop’s Heirs, c. 104.” Adm’rs. Va. 37 W. charges continuing 16 E. As declaration S. begin representa run until the statute did not falsity was discovered. 37 tions had ceased or their C. J. 892; Miller, Nathan, 119 946. See Madole v. Atl. Shields v. 34; Smith, etc. Ins. Co. v. 38 108 Pac. Connecticut Am. St. 656; Dean, Furthermore, Rep. Dean v. S. W. 505. eases, this, where confidential relations exist between like *6 parties fraud, many and the basis action is courts of the actual hold part guilty that mere party silence on the will toll running many the been the statute. “It has stated that, times if the fraud, of the action actual mere basis is regarded silence original as a continuation of the constituting concealment; and as a fraudulent and would seem especially to applicable to parties cases where the bear to each other a or trust confidential relation.” Case note, (N. S.) L. R. A.
We opinion, therefore, judgment are of the to reverse complained of, demurrer, case. overrule the and remand the
Reversed and remanded. (concurring) : Judge, Maxwell,
Stripped verbiage considerations, and immaterial there presented here claim of a her former sole feme damages husband for for him of fraudulent destruction her relies, status covert. As of her basis suit she feme not on machinations preliminary husband to climax alleged fraud, but the consummated of des- act truction of her I status. so construe the declaration. narrow,
I am impressed very therefore that it would be a strained and her unwarranted construction which would bar recovery theory complaint on that the cause her period arose within between and defendant. (dissenting) :
Hatoher, Judge, This declaration, alone, case is here on a demurrer to the supplemented and not on a demurrer the declaration to history litigation and be- extraneous of the conduct majority parties, tween the as the of the Court has treated authority treatment, it. I no know of such and accord- ingly my Its shall limit consideration to the declaration. (1) plaintiff allegations material are that and defendant legally February 19, 1921, were married on and to- lived gether 1925, until 28, as husband and wife on or about June her; wrongfully permanently when defendant abandoned 24, 1923, scheming destroy on fraudu- October defendant lently just, rights, cause, her mairtal and without instituted purpose having marriage- annulled; a suit for the their thereafter,” (3) long bear of suit “for time sbe did not wrongfully informed it, upon asking defendant about he only bringing purpose suit “for her that he was marriage, promised clearing up clarifying” their statements; dismissed, on his suit would be relied annulling (4) February 2, 1924, a decree was entered her as live with marriage, their but defendant continued to suit had assured her that the husband and.“at all times” dismissed; (5) been learned of annulment decree she first chancery July, and on March instituted setting proceeding purpose aside the decree; (6) court( re- proceeding was tried eii’cuit stated) Supreme Court, which appealed sult “for sustaining rendered a decision the annulment decree *7 remarried and the the sole reason that the said defendant had rights (this his had intervened” is the second wife remarriage or the second reference declaration to a wife); (7) by so fraud and deceit reason of defendant’s duty as a practiced plaintiff, wrongfully on violated his he destroyed rights, and her marital status and her, husband to great of mind and caused her “humiliation and distress body,” etc. through summary
A plaintiff’s complaint is that coverture) (during he deception by willful of her defendant marriage. In fraudulently procured the termination their wrong charges against is her wifehood. words, other arising allegation injury representations There is no promises entry to her after or made deception allegation There decree. is no defendant’s prevented of her following the a restoration decree marital subsequent rights remarriage. Consequently, before charged pictorial than material. is rather conduct by relating wrongs a wife The law to the common of West repugnant is the constitution husband not Consequently that law Virginia is statute. unaffected Constitution, VIII, Article is still law of the State. See wrongs to the wife such sec. 21. That law affords no redress Eng. Ency. Law, Am. 15 & either or after divorce. before 443; J., 30 C. 857; subject Wife, sec. 13 R. C. L. Husband
383 subject Wife, 675; Husband and sees. 317 and 319 and Sehouler, Marriage, Divorce, (6tb Ed.) etc. 627 secs. 630; Madden (1931), on Domestic 69. The Relations sec. leading England subject Phillips Barnet, case v. on this Q. 45 277, B. Div. which held: “An action wife divorced against her during former acts husband done the coverture will not lie.” leading case in Abbott the states is v. Abbott, 304, 67 306, 27, (decided Me. 24 Rep. Am. 28 1877), exactly English case, which saying: held with the “Divorce cannot make cause of action which was not cause action before divorce.” “eman Modern statutes cipating” the wife do affect part not this common law. Lillienkamp Rippetoe, v. 57, 59-60, 133 Tenn. R.L. A. 1916B 881; Strom, Minn, 428, (N. Strom v. 98 427, S.) 6 L. R. A. 191; 759; Bandfield, (Mich.) 757, v. 40 L. A.R. Bandfield Peters, (Cal.) v. S.) 701; Peters 23 L. (N. R. A. Decker Kedley, v. 305; C. A. Thompson Thompson, C. 218 U. 618; J., p. S. 318; C. sec. 13 R. C. L. 1395. The law on this subject, right wrong, whether or is definite. majority excepts instant case from common theory law rule perpetrated opinion says: coverture. The “The fraud is not consummated and does therefore not exist until the dissolving marriage.” The citations which theory strictly based have reference to action- able Since there is no actionable fraud at common law fraud. wife, between man and the statement citations are not *8 apropos. they entirely Even apposite, were the fraud was marriage consummated within coverture the inwas because it, entry effect until the decree dissolved and of the the decree necessarily preceded the This dissolution. consideration is changed marriage-by not because the termination of the the suggested decree was immediate. It that a is this is narrow being narrow, suggestion If is construction. exact then the dealing is well made. we of But are now court law with matter, admittedly common law the common law is rigid regards law and exact. The common even husband and person, possible which wife as one is the narrowest view of rigor their relation. of It was because the and strictness of the law where equity common courts were established prevail. long the liberal construction could As as we retain way escape common law I construc- system, see no to exact theory Besides, majority tion. is heedless of recovery predicates right It on plaintiff’s declaration. by her promises, false statements and broken made to defend- progress marriage re- suit, and while the charged; but duty lation still existed. No of defendant is allegation dirty breached is that defendant “violated willfully wrongfully every duty as a husband that he ’’ plaintiff. practiced charge owed to this is no of deceit There ac- purpose deception on court. The defendant’s was complished (“consummated”) relied when fad upon representations he he made to her while was still her husband. as matter of The annulment decree followed say deception routine. To not exist until defendant’s did al- opposed the moment the was is to the facts entered leged fancy and is a which I cannot follow. sublimation of majority “Suppose com- proposes
The test: this by during coverture spouse mitted one other actionable, plaintiff in before this case have sued could hypothesis of Conjecture was dissolved?” This law, is not the will illuminate discussion. what not suppose matter cannot that —it be tested if definitely foreclosed. It is a matter as as the law of the settled has common said be—that a wife no Medes Persians was duty” right duty, “every law of action for the violation of a divorce, her, or annul- even—which husband owed ment, not where none before existed. does make later.) will referred (Equitable relief for such violation thought majority plain- is further influenced entry injury precede but followed tiff’s did Concededly main —but consider this decree. correct viciously while a case: A his wife divorce' husband slandered them; shortly afterwards a decree pending suit was between from the effects entered, and she suffered divorce injury many years. part of her that slander preceded decree is small which so slander inconsequent- part which as to be comparison to the folowed *9 Yet ial. admittedly gave common law her no of action for the I see in principle slander. no be- difference tween that case and the instant ease. majority
The by demanding forecloses the discussion how it can plaintiff’s be said status still existed after the decree from resulted which injuries. up This is a set “the straw man.” I have say, heard no one I shall say, plaintiff’s not mar- riage status existed after the decree was entered. Another infirmity in this majority demand the failure of the re- cognize injuries wrongs from during inflicted matri- mony, usually (if invariably) flow after divorce. wrong injuries The alleged its resultant in the instant degree case wrong differ kind and in- juries many women. If divorced the common law allowed compensation injuries which follow a woman after divorce, settling,” “Instead of said the court Abbott v. Abbott, supra, very “a divorce would much unsettle all mat- parties. private ters between married matters of the period might exposed by whole married existence suits. actions, of limitations statute could not cut off because With coverture the statute would not run. divorces they as common as now-a-days, are there would be har- new litigation. precedent permitted, vests If such we why any surviving do not see wife the husband could not maintain suit or executors administrators for defamation, curelty, assult, deprivations or or or that she may wrongfully husband; have at the suffered hands would add a method which estates new could be plundered. rule, We which all op- believe forbids such portunities for speculations, law suits and to be wise ’’ salutary and to the solid -foundations the law. stand on ignore is no in such cases facts and
There in- occasion dulge theory, rigor in mere of the common because Wrongs In are not without redress. Abbott law. to wife Abbott, supra, as follows: her remedies are enumerated open privilege criminal has “The courts to her. She are corpus, unlawfully if restrained. As writ of habeas resort, prosecute if she can at her husband’s be, need last *10 386
expense her, If a she has a suit for divorce. divorce is decreed estate, dower in all his all her and her causes and needs all any of complaint, including suffered can be con- cruelties compensation court in ali- sidered the nature of and mony appears alowed for A in Main them.” like statement v. Main, App. remedy for in 46 Ill. 108. fraud is The equity. "Broadly exception fraud stated, single with the in obtaining will, equity jurisdiction a re- courts of have to jury private lieve in all cases of where in is a J., Equity jurisdic- nature.” 21 subject Equity, C. see. 82. perpetrated by tion is one- not affected the fraud because is spouse unity hus- equity on the other. In the fiction of the disregarded band are dis- and wife is the two treated as persons personal rights. Story Eq. tinct separate with 3 (14th Ed.), equity Juris. a wife 1793. In a suit sec. procured by to fraud of the vacate annulment decree indubitably husband, have to de- the court would to, justly cree her whatever amount she was entitled as dam- Merely ages for no how matter the suit terminated. exigencies prevented a vacation of the situation because ground refusing her com- decree would afford no remedy pensation. equity If that should afford idea for a itself "is novel, consider that a divorce suit tort seems wrong” "is in an action essence founded on matrimonial 2 technically name.” tort, though not known this Bishop Marriage, Separation, 488 Divorce and secs. 489. judg
I law regarded heretofore it as settled have actually ment conclusive matters decided not might been properly but of all matters which have determined subject J., Judgments, 34 the suit. See sec. C. Ry. notes, including Fleming many cases cited in the Virginia Co., 1, 82 E. 819 West de 82 W. Va. and other S. properly in her suit plaintiff cisions. could have asked very damages which decree, to the annulment vacate in this did not do that. to recover action. She she now seeks present part of "the majority Even action treats * '* * by It controversy court.” twice considered litigate matter estopped to would seem therefore In passing, further. I will call attention to the fact support majority citation in subject, to-wit, view of this R. C. L. position. does sustain its majority opinion holds: “We are of that the statute suspended limitations was from the annul- marriage ment decree to Gregg of Cameron Ruth July, 1925.” The declaration specific makes no reference to Gregg. of Cameron to Ruth The declaration does say ignorant of the annulment decree until July, (Were permissible regard it our decision in the former *11 parties, suit between these I would remind the majority that we found follows: as “The evidence is con- * * * clusive that within a month entry or so after entry.” annulment decree she was told its See Cameron v. Cameron, 655, 107 W. 656, Va. 150 225. S. E. As the annulment February 2, decree as 1924, entered first learned of its “within a month or so” instead of July, in alleges as majority she now and as would find.) may It be history parties that discloses Cameron Gregg and Miss in July, were married 1925. How- may ever be, that majority far it seems that as as should go, say allegations would be to that under the the de- claration suspended the statute of July, limitations was until
Judge Lively say joins authorizes me to that me he with in this dissent.
Upon rehearing. support In petition rehearing urged for it is that plaintiff cannot action because is maintain it said that it “an damages recover effort to for the fraudulent obtaining aof decree which stands unreversed at time brought,” action is and “is in law a collateral attack decree, policy that and that this the the law forbids.” principle excerpt contended for is thus in an stated from a case, Tuttle, North Dakota Tuttle v. 181 “As N. W. 898: long adjudication losing as the former remains in force, party maintain an party cannot action the successful wrongful obtaining judgment by
for fraudulent ’ practices.1 general principle a proposition of this as The soundness be recognized, principle must but cannot reason damages protecting liability carried to the extent ad procuring has been defendant whose fraud decree Cameron, ease, (Cameron v. 107 W. Va. judicated, as in this 225), E. decree remains 150 S. the fraudulent intervening rights effect of an innocent because of the party. third already having judicially
It’ been determined by fraud, question procured annulment decree had been longer attacking is no an- issue. The collaterally, relying subsequent nulment decree but is on adjudication adjudica- procurement. fraudulent its been tion this Court .had fraudulently ques- procured, is as final and effective on that if a also been ordered. tion as cancellation the decree had charge depend upon This action does not mere fraud. judicial but its determination of has as basis solemn (15th Judgments, Ed.), section As stated Freeman on for- defendant, the reason the rule relied bidding damages procure- an action of for the fraudulent judgment long ment in force” is that of a as it “remains *12 neg- conclusively charges “the action made the second are adjudication.” adjudica- former atived the former holding tion, superseded subsequent decree has been fraudulently does procured, had been and therefore it Briefly charges negative made” the action. “the damages results stated, the to sue deny- charge fraud and establishing rights ing intervention of the specific relief because party. of an innocent third applied fallacy to this
To of the rule demonstrate the fraudulently judgment Suppose procures A case: B, before B discovers the favor for the land of purchaser for vaule without conveys property C, against A the fraudulent notice; by B to cancel in a suit deny specific protect C, B would, order to court decree the relief, holding after complained that the decree been had fraudulently procured. B (according could not to the con- defendant) tention of recover damages against A for the wrong because the fraudulent permitted decree had been stand in protect order to rights of an innocent third party. Chesapeake Railway Company
Charlie Thomas & Ohio Corporation A
(No. 7163) Submitted November 1931. Decided December Fitzpatrick, Strickling, & Brown Davis and G. W. plaintiff in error. *13 Lilly,
A. A. for defendant in error.