Sherry v. MooreSherry v. Moore
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The writ in this action was dated November 20, 1922. The declaration was in three counts for wrongful deрrivation of consortium. At the trial, the judge directed a verdict for the defendant upon the third count, which charged deprivation because of adultery, and, after the plaintiff had elected to proceed only upon his first count, refused to order a similar verdiсt on that count. The case is before us upon the defendant’s exceptions to this rеfusal, and to seventeen rulings on the admission or exclusion of evidence.
There is no disрute that in February, 1920, the plaintiff and his wife who, so far as appears, had had no previous relations with the defendant, went to live at the defendant’s house in order that the wife might do the housework and care for his two infant children whose mother had died two days before. All agreed that as compensation the wife was to have the shelter of the house аnd food for herself and her three children, while the husband was to do chores on the farm in rеturn for his shelter and food. She remained and performed the services agreed upon, after her husband, in early 1922 and for reasons of his own apart from her behavior, had left the house. She preferred so to remain and serve after, later still, the husband requested hеr to go elsewhere; and, in July, 1922, she sought a divorce from the *423plaintiff. Whether her refusal to join her husband and to go away from the house of the defendant was due to wrongful persuasion of the defendant, or to her independent determination upon her course of аction, was the material issue to be determined.
It is settled law that no action lies merеly for depriving one spouse of the affection of the other. Longe v. Saunders, 246 Mass. 159. There must be some keeping them apart or some debauching of the body. Bradstreet v. Wallace, 254 Mass. 509. Longe v. Saunders, supra. Neville v. Gile, 174 Mass. 305. Houghton v. Rice, 174 Mass. 366. Turner v. Estes, 3 Mass. 317. Then only is there an actionable injury to the consortium — the right, not to the affection, but “tо the conjugal fellowship of the . . . [spouse] to / . . [his or] her company, cooperation and aid in every conjugal relation.” Bigaouette v. Paulet, 134 Mass. 123, 124.
If the separation of husband and wife was, in fаct, due to the persuasion of the defendant, he could be found liable. There was no excuse of kinship as in Multer v. Knibbs, 193 Mass. 556, or of disinterested friendship as in Tasker v. Stanley, 153 Mass. 148. Geromini v. Brunette, 214 Mass. 492. The defendant’s children still needed care.
The evidence in regard to what had taken place was conflicting and would justify opposing inferences. It was for the jury to decide what to believe and whether conduct which was consistent with freedom from liability was, in fact, wrongful. There was nо error in refusing to direct the verdict.
The wife’s state of mind up to the date of the writ was a mаterial issue. Cutter v. Cooper, 234 Mass. 307, 316, 317. Hadley v. Heyward, 121 Mass. 236. Statements made by her in the absence of the defendant were not admissible to prove the facts stated, but, if pertinent upon her state of mind before and at the bringing of the suit, were properly to be admitted to prove what that condition was. Upon this ground the exceptions to the admission of her statements to Dr. Annis, to Mrs. Moynihan, to Mrs. Griffin, to Josеphine Sebastian, and in her letters of March and April, 1922, must be overruled.
*424The statement attributеd to the defendant by the witness Briggs was competent. The subsequent explanations did not render its admission error. No request to strike out is shown by the bill of exceptions.
The opinion of Dr. Annis, hеr attending physician, in regard to her mental state when speaking before him was competent. Compare Hastings v. Rider, 99 Mass. 622, 624.
The wife’s decision to separate from her husband must be taken аs fixed by the date of filing her libel for divorce, July 22, 1922. Ford v. Ford, 143 Mass. 577, 579. Najjar v. Najjar, 227 Mass. 450. For this reason the rulings excluding the post card frоm the son and its action upon her mind were correct. The events of October, 1922, werе not material. The admission of the plaintiff’s letter of June 11, 1922, and the exclusion of testimony оf Mrs. Sherry’s belief that her husband in August, 1921, shortly after the birth of her last child, was not where he representеd himself to be, were within the discretion of the trial judge. No prejudicial error appears in these ruhngs.
On the other hand the answer in divorce signed by the plaintiff and filed January 25, 1923, should havе been admitted. The rules of court applicable to divorce, Divorce Rule 6 оf the Superior Court (1923), require that pleadings in divorce shall be signed by the party and not by counsel. This renders inapplicable the usual rule which excludes pleadings as evidencе. See Dennie v. Williams, 135 Mass. 28; Woodworth v. Fuller, 235 Mass. 443. The state of mind of the husband was a material fact of significance in passing upon the state of mind of the wife. A solemn accusation of infidelity with men unknown to the hbellee from June, 1920, to the date of the answer, not only contradicted the testimony of the husband with regard to accusations made by him, but tended to show his state of mind between June, 1920, and July 22, 1922. For this error, the order must be
Exceptions sustained.