Cook v. Bartlett

61 N.E. 266, 179 Mass. 576, 1901 Mass. LEXIS 616

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1901
• Status: Published

Opinion

Knowltok, J.

The defendant’s first contention is that there was error in permitting the jury to find on the evidence that Lilla B. Cook was legally adopted as the plaintiff’s daughter tinder the laws of Vermont, where the parties resided at the time of the adoption. Under the law of that State the instrument signed and. sealed by the adopting parents, and by a parent, guardian or representative of the child, must be acknowledged before the judge of probate of the district where it is to be filed. The certified copy of the record shows that the proceedings followed the statute exactly, unless the signatures below the certificate of acknowledgment fail to show an acknowledgment before the judge of probate. The certificate is in the prescribed form, but after the words, “ Before me,” we have two official signatures, as follows : “ Fred. G. Field, Notary Public,” “ Hugh Henry, Judge of Probate, Dist. of Windsor,” the last appearing in the copy of the record below the first and a little to the left of it. We find nothing in the statute or in the record to give to this signature of the judge of probate any other meaning than that which it should have as evidence that the paper was acknowledged before him as required by the statute. Moreover, the statute provides that the instrument shall be recorded, “if it appears to the Probate Court that the provisions of the statute have been complied with.” This instrument was recorded. The natural inference is that the judge knew that the law had been complied with by an acknowledgment before him.

What is the law of a foreign State, is primarily a question of fact, but so far as it appears in statutes and decisions which are not conflicting, the construction of the language is for the court.Wylie v. Cotter, 170 Mass. 356. Ufford v. Spaulding, 156 Mass. 65. Bride v. Clark, 161 Mass. 130. Whether enough appears in the record and statutes introduced in this case to justify an instruction as matter of law that upon the undisputed facts the child was legally adopted, we need not decide. The instruction submitting the question to the jury was sufficiently favorable to the defendant.

The defendant’s second, fourth, fifth and sixth requests for instructions were covered by the charge. Although the words “ direct ” and “ proximate ” were not used, the jury were told repeatedly in different forms of expression, that in order to return a-verdict for the plaintiff they “ must be satisfied that the inability to render the services was due to the seduction.”

The third request was not founded on any evidence in the case. There was no testimony indicating that the plaintiff lost services of his daughter on account of her mental distress, or that she suffered mental distress. Moreover, the instructions given permitted the plaintiff' to recover only for loss of services which occurred by reason of the seduction.

The seventh, eighth, ninth, tenth, eleventh and fourteenth requests for rulings are all founded on the contention of the defendant that if the plaintiff established his right to recover, the damages allowed were to be confined to compensation fof loss of services. But this is not the law. The plaintiff in such an action cannot recover unless he shows a loss of services to which he was entitled; but if his right to recover is established, his damages may include compensation for the injury to his feelings, and for the dishonor and disgrace brought upon himself and his family. Phillips v. Hoyle, 4 Gray, 568. Treanor v. Donahoe, 9 Cush. 228, 229, 230. Stowe v. Heywood, 7 Allen, 118, 122. Hatch v. Fuller, 131 Mass. 574.

The remaining exceptions are to two paragraphs in the charge, on the ground'that they tended improperly to influence the jury by way of argument and by an expression of opinion, and that they were a violation of the Pub. Sts. c. 153, § 5, which forbids judges to charge jurors with respect to matters of fact. In these paragraphs there is language which might seem to indicate that the opinion of the judge on the matters referred to was favorable to the plaintiff. We think it would have been better if the expressions had been more guarded; but when we consider , the instructions as a whole, and read this language in connection with other parts of the charge, we are of opinion that no intentional argument or expression of opinion appears, and that there is no such error as would justify us in disturbing the verdict. See Harrington v. Harrington, 107 Mass. 329; Morrissey v. Ingham, 111 Mass. 63.

Exceptions overruled.