Gahagan v. Church

239 Mass. 558

• Court: Massachusetts Supreme Judicial Court
• Decided: October 11, 1921
• Status: Published

Opinion

De Courcy, J.

The plaintiff’s action is based on loss of consortium, — that is, his right to the society, conjugal affections and assistance of his wife. Alienation of affections alone is not a substantive cause of action in this Commonwealth, but merely aggravates the damages where the wife is debauched or enticed away. Neville v. Gile, 174 Mass. 305. It was not necessary for the plaintiff to allege or prove adulterous intercourse; as the action is not for criminal conversation. Houghton v. Rice, 174 Mass. 366. His claim is that the defendant, with malice or improper motives, persuaded and enticed his wife to leave his home. At common law such invasion of his rights has long been actionable. Winsmore v. Greenbank, Willes, 577. Nolin v. Pearson, 191 Mass. 283, 288. Webber v. Benbow, 211 Mass. 366. Geromini v. Brunelle, 214 Mass. 492.

The evidence would warrant the jury in finding the following facts: After the plaintiff and his wife had lived in Easthampton for six years, in June, 1919, they moved with their five young children to a farm in Ashfield, which the plaintiff purchased from the defendant. Mrs. Gahagan then met the defendant for the first time. During the months following there were numerous acts of familiarity between them, the defendant frequently calling at the plaintiff’s house, sometimes in the latter’s absence. During the summer of 1920 at one time they were seen seated on a barrel, with his arm around her waist; at another time sitting together on the grass by the roadside; and on the way to and from a dance she sat on his knee, although there was ample room on the wagon seat. On August 5,1920, the plaintiff saw them standing together in the pasture, and the defendant had his arms around Mrs. Gahagan’s waist. Gahagan then told the defendant to “keep away from her and keep away from her entirely and keep away from the place and warned him.” According to th,e plaintiff’s testimony the response of the defendant was, “don’t blame her but blame me if your home is broken up;” and “you are not the proper man for that woman, . . . you cannot make a home as a man should.” He persisted in calling upon Mrs. Gahagan during her husband’s absence. On September 20, 1920, she left her home and moved to Northampton, with the children. She has since refused to return; and when urged to go back for the sake of the children, she said that “she wouldn’t have anything more to do with Mr. Gahagan.”

Without stating the evidence in further detail, it is apparent that it raised an issue for the jury as to whether the conduct of the defendant was a controlling cause of Mrs. Gahagan’s desertion. Hadley v. Heywad, 121 Mass. 236. Although present at the trial, he did not testify in denial or explanation of the statements and conduct above referred to. We cannot say, as matter of law, that the testimony of the witnesses, and the reasonable inferences which practical men would naturally draw from that testimony, did not warrant a verdict for the plaintiff.

The defendant has not argued his exceptions to the admission of evidence, and we treat them as waived.

Exceptions overruled.