Webber v. Benbow

97 N.E. 758, 211 Mass. 366, 1912 Mass. LEXIS 788

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1912
• Status: Published

Opinion

Hammond, J.

The plaintiff’s declaration is as follows: “ And now comes the plaintiff in the above entitled action and for declaration says that the defendant contriving and wrongfully intending to injure the plaintiff and to deprive her of the comfort, society, aid, assistance and support of George H. Webber, the husband of the plaintiff, and alienate and destroy his affection for her, unlawfully and unjustly gained the affection of her said husbaúd, and persuaded, procured and enticed her said husband to leave the home of the plaintiff, and to continue absent from the same, by means of which persuasion and enticement he did continue absent for a long period of time and up to the bringing of this suit, whereby the plaintiff lost the comfort, society, aid, assistance and support of her said husband and his affection for the plaintiff was wholly alienated and destroyed, all to her great damage as she saith in her writ.”

“In this Commonwealth, alienation of affections alone is not a substantive cause of action . . . but is merely an aggravation of damages, for the loss of consortium,” says Lathrop, J., in Neville v. Gile, 174 Mass. 305,306, citing Bigaouette v. Paulet, 134 Mass. 123; Evans v. O’Connor, 174 Mass. 287. See also Lellis v. Lambert, 24 Ont. App. 653. Relying upon this rule the defendant insists that this declaration, like that in Neville v. Gile, alleges'as the substantial cause of action alienation of affections. This position is untenable. The declaration is in the usual form for loss of consortium, and clearly sets out that loss as the cause of action. An examination of the original papers in the case of Hadley v. Heywood, 121 Mass. 236, discloses the fact that the form of the second count in that case is, mutatis mutandis, identical with the declaration in the present case except that this declaration is strengthened by the addition of the word “support” after “assistance.” And this court has said that in the second count in Hadley v. Heywood, “loss of consortium was properly charged.” Neville v. Gile, ubi supra. See also in addition to cases above cited, Tasker v. Stanley, 153 Mass. 148, and Nolin v. Pearson, 191 Mass. 283, for a discussion of the general subject. The present case is clearly distinguishable from cases like Neville v. Gile, ubi supra, and Houghton v. Rice, 174 Mass. 366, cited by the defendant.

The evidence as to the familiar and suspicious conduct of the defendant with the plaintiff’s husband in the defendant’s bedroom was properly admitted. It is to be noted that the plaintiff’s counsel expressly disclaimed any suggestion of adultery or debauchery on the part of the defendant, and offered the evidence only as bearing on the defendant’s “mental attitude.” But it was admissible even if it tended to show adultery. If believed, it had a tendency to throw some light upon the methods of enticement used by the defendant, and also upon her motives. And this is so even if adultery was not set out in the declaration. Nor do we see that the defendant has any just ground of complaint as to the manner in which the presiding judge treated this matter in the charge to the jury./

Exceptions overruled.