Negus v. Foote

228 Mass. 375 | Mass. | 1917

Braley, J.

The cause of action stated in each count of the amended declaration is for loss of consortium, and the allegation of the alienation of the affections of the plaintiff’s wife through the alleged acts and conduct of the defendant only go in aggravation of damages. Hadley v. Heywood, 121 Mass. 236. Nolin v. Pearson, 191 Mass. 283, 287, 288. While the action can be maintained without proof of adultery, Nolin v. Pearson, ubi supra, Webber v. Benbow, 211 Mass. 366, 368, it is clear upon the record that to make out a case for the jury the plaintiff was obliged to offer evidence of his wife’s infidelity in which the defendant was a participant. It has long been settled that previous acts of familiarity, unless in the discretion of the judge they are too remote, are admissible to show an adulterous disposition, and there is no difference between acts of familiarity and actual adultery, when offered for the purpose indicated, except in the additional weight and significance of the latter act. Beers v. Jackman, 103 Mass. 192. Thayer v. Thayer, 101 Mass. 111. It was one link in the chain of proof to show adultery by the wife, and ás the jury would have been warranted in finding non-access by the plaintiff during the entire period covered by the offer of proof which was excluded, evidence that his wife had been delivered of a -child tended to prove the offence. Commonwealth v. Morrissey, 175 Mass. 264. See Commonwealth v. Gray, 129 Mass. 474. But, if no evidence had been introduced from which in connection with the offer of proof the jury would have been warranted in finding that the defendant was the father, the plaintiff has not been prejudiced. “The evidence by which the act of adultery is proved is seldom direct. The natural secrecy of the act makes it ordinarily impossible to prove it, except by circumstantial evidence,” and “The intent and disposition of the parties toward each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties.” To this end their antecedent and subsequent conduct are admissible if it has a tendency to prove the fact. Thayer v. Thayer, ubi supra.

The ruling excluded proof of the birth of a child on October 5, 1915. If the jury found that the wife was delivered on this date they further could find in accordance with common knowledge and experience that the child was begotten nine months previously, or approximately in January, 1915. The defendant was employed as a chauffeur by the plaintiff’s father-in-law, one Ross. The plaintiff with his wife and minor daughter kept house by themselves, but the defendant boarded and lodged with his employer. During the summer of 1914 the plaintiff’s wife and the defendant “were riding together a good deal . . . were frequently in the garage together and often sat together upon the porch in the evening.” And the plaintiff further testified that “his wife frequently remained in the garage with Foote in the evening after every one else had left;” that he had “seen the lights go out, and I have waited perhaps fifteen minutes before my wife would show up;” that “he remonstrated with his wife about her conduct and that such conduct on her part was the cause of his going away from his home” finally in September, 1914, since which time he has not lived with his wife.

The defendant testified that he knew of the plaintiff’s absence, and that “soon after Thanksgiving in 1914, at the request of Mrs. Ross, ... he boarded and roomed in the house of Mrs. Negus; . . . that he left the employ of Ross about February, 1915,” but returned " sometime in May, 1915,” and then stayed at the Ross house where “he had a room on the second floor” and “that Mrs. Negus had a room which did not adjoin his on the second floor.” And a witness for the plaintiff testified that in July, 1915, when as the jury could say Mrs. Negus was well advanced in pregnancy and the defendant knew of her condition, he said, “that he would be very glad to marry her if it was so that he could, if it was so that she could get married.” We are of opinion there was evidence from which the existence of an adulterous inclination or desire between the defendant and Mrs. Negus could be found, with an opportunity for coition at a period which would charge him with the paternity of the child. Or in other words, it was for the jury using the logic of common experience to consider, under appropriate instructions, cause and effect, and to determine whether all the circumstances were reasonably sufficient to establish the defendant’s guilt, or whether they were equally compatible with his innocence. Thayer v. Thayer, ubi supra. Beers v. Jackman, ubi supra. Commonwealth v. Bean, 137 Mass. 570, 571. Sullivan v. Hurley, 147 Mass. 387. Francis v. Rosa, 151 Mass. 532. The case of Commonwealth v. O’Connor, 107 Mass. 219, on which the defendant relies is clearly distinguishable. Compare Commonwealth v. Morrissey, 175 Mass. 264.

The evidence should have been admitted, and the exceptions must be sustained.

So ordered.