| R.I. | Feb 19, 1904
On July 6, 1903, Frank E. Smith was committed to the Providence County Jail, on an execution in favor of the petitioner, in an action of trespass on the case for the wrongful and malicious alienation of the affection of the petitioner's wife.
On July 14, 1903, a citation was issued by this respondent on Smith's application to take the poor debtor's oath. The petitioner then filed this petition for a writ of prohibition against further proceeding under the citation.
Gen. Laws cap. 260, § 1, allows a citation to any person imprisoned for debt. In a general sense a judgment is a debt, but section 10 limits the scope of the term of debt by providing that no person who shall be committed on execution "in any action of trover or detinue, or for any malicious injury to the person, health, or reputation of the plaintiff in such suit," shall be deemed to be within the meaning of section 1.
The respondent claims that the writ will not lie, because he has jurisdiction, and that the granting or withholding relief on the citation is a matter of judicial discretion.
The office of a writ of prohibition is to restrain excess or improper assumption of jurisdiction. 23 Am. Eng. Ency. Law, 195.
If the execution is within the terms of section 10, the respondent had no jurisdiction to issue the citation; for the *18 execution defendant would not be entitled to take the oath, nor would he be entitled to apply for a citation.
A writ of prohibition is therefore proper, if the case is within section 10.
There is no appeal from the decision to grant the poor debtor's oath, and no other way to restrain action. Objection at the hearing would be of no avail, if the justice should proceed to administer the oath.
The real question is, therefore, whether the case is within section 10, as a case for injury to the person, health, or reputation of the plaintiff.
We think that an action for alienation of the affection of a wife is clearly one for an injury to the person of the husband. The gist of the action is depriving him of companionship and a wounding of his feelings. As said in McDonald v. Brown,
All of these things are usually attendant upon a case of alienation of affection. The nature of the charge is one that implies malice. We can hardly conceive of a case where it would be otherwise.
A man would not be found guilty where the result was brought about unwittingly or without effort or inducement on his part.
The bar to the oath under section 1 is for malicious injury to the person, health, or reputation of a plaintiff.
Whether health was affected would be a question of fact; but that alienation of affection imports both injury to person and to reputation seems to be obvious. In re Kimball,
The other cases cited by respondent, as to the meaning of the word "person," are quite different from the case at bar.
Calloway v. Laydon, 47 Iowa, 456" court="Iowa" date_filed="1877-12-13" href="https://app.midpage.ai/document/calloway-v-laydon-7097674?utm_source=webapp" opinion_id="7097674">47 Iowa, 456, was an action by a wife *19 to recover for injuries, in means of support and in health, by the sale of liquor to her husband. The statutes of Iowa, tit. XI, cap. 6, § 1557, gave right of action to a wife, "injured in person or property or means of support." against the person making the sale.
The court held that threatening language and vulgar conduct by the husband to the wife was not an injury in person, within the meaning of the statute, upon the ground that the statute was not intended to give a right of action to every one to whom a threatening or vulgar remark should be addressed by an intoxicated person. Hence it construed "in person" to mean "in body."
A similar construction was given in Smith v. Sherman, 4 Cush. 408, which was a question whether an action for breach of promise of marriage survived, under a statute providing for survival of an action of trespass on the case for damage to the person. Shaw, C.J., said: "This manifestly extends only to damage of a physical character, as by negligence of carriers, towns, or the like. If the term `person' were used in a broader sense, it would extend to slander and every other possible case of tort, which could not be contended."
Two things are to be noted in respect to this decision. The statute had not the word "malicious" with reference to injury, thus excluding negligence, as held in Re Kimball, supra; and it was confined to "person," thus excluding slander.
Our statute expressly includes slander and libel, by adding the words "health or reputation;" and the addition of these words, together with the word "malicious," indicate that injury to the person is used in the broad sense of the term.
In McCarthy v. Guild, 12 Met. 292, a statute gave an action to a person injured by a dog. The court held that it meant injured in person or property, and allowed a parent to recover for loss of service of a minor child. This doubtless would be covered by the word property, but the court added that a narrower construction would deprive a husband of recovery for the loss of the society of his wife.
State v. Clayborne (Wash.), 45 P. 303" court="Wash." date_filed="1896-06-03" href="https://app.midpage.ai/document/sitton-v-dubois-4723310?utm_source=webapp" opinion_id="4723310">45 Pac. Rep. 303, was a criminal proceeding for an assault with a deadly weapon, with intent to *20 inflict "personal" injury, instead of "bodily," the word in the statute. Obviously the court held that they were words of the same meaning, as used.
As our statute excludes from the poor debtor's oath an execution defendant who may have been guilty of a trivial slander, we can not think that it intended, by use of the general term "malicious injury to the person," to allow one found guilty of the more serious wrong of alienating the affections of a wife to have the benefit of the oath.
The respondent claims that the statute should be liberally construed, citing Thompson v. Berry,
But with reference to the section involved in this case, formerly Rev. Stat. cap. 198, § 16, it was held in Re Payton,
The section in question was first adopted in January, 1827. Judge Brayton said of it, in Thompson v. Berry: "This, it will be seen, is not an enabling act, extending the relief to other persons than those before included in the act, but a restraining act, excluding persons to whom the relief might before have been granted."
We are not aware that it has ever been held to include a case like the one before us, and in our opinion the terms of the act exclude it. Consequently the respondent had no jurisdiction *21 to consider or pass upon the application for the poor debtor's oath.
The demurrer to the petition is overruled.