Sherry v. Moore

| Mass. | Nov 27, 1928

Sanderson, J.

This is an action of tort, begun November 20, 1922, for alienation of the affections of the plaintiff's wife. The verdict was for the plaintiff.

The plaintiff introduced in evidence a divorce libel filed by his wife July 17, 1922, in which she charged him with cruel and abusive treatment and nonsupport. The defendant then put in the answer to that libel signed by the plaintiff and filed January 25, 1923, alleging, among other things, that the libellant had been unfaithful to her marriage vows and at divers times between June, 1920, and January 25, 1923, had committed adultery with men whose names were unknown to him. The plaintiff then introduced, subject to the defendant’s exception, the writing on the back of the answer in the following words: “The within answer as far as it relates to adultery is hereby waived. Charles E. Sherry.” The record did not disclose when the waiver was indorsed on the answer, although the plaintiff testified that he thought it was in May, 1925. When this testimony was introduced the judge said in substance that this waiver as well as the answer to the divorce libel had been admitted only to enable the jury to consider what the state of mind of the libellee in the divorce proceedings was and for no other purpose, and that if the answer or the evidence tending to show waiver of a part of that answer in any way contradicts the plaintiff it would be admissible for that purpose also. This answer, although filed after the action was begun, related in part to an earlier period and was admissible in evidence. Sherry v. Moore, 258 Mass. 420" court="Mass." date_filed="1927-03-01" href="https://app.midpage.ai/document/sherry-v-moore-6437873?utm_source=webapp" opinion_id="6437873">258 Mass. 420, 424. The waiver was a part of the answer. The ruling admitting the waiver could not have prejudiced the defendant. The plaintiff later testified that he knew of no improper relations between his wife and the defendant, and the judge ruled, at the defendant’s request, that there was no sufficient proof of adultery.

There was no error in permitting the witness to state that his reason for not supporting his wife during a period after the action was begun was because she would not leave Moore. The defendant had previously brought out the fact that the plaintiff had contributed to the support of his wife and children by order of the court after the libel for divorce was filed and down to May, 1923, when the order was revoked. One of the issues in the case was whether the defendant had wrongfully kept the plaintiff’s wife away from him. Evidence as to the relations of the parties, including the husband’s failure to support his wife, even after the action was begun and his reason therefor, was not immaterial. The plaintiff might be permitted to show that the wrong of which he complained continued while the action was pending and his reason for not supporting his wife could be found to have a bearing on that matter. There was no error in permitting the plaintiff in cross-examination of his wife to ask whether the defendant’s hired man moved certain furniture to the defendant’s house and whether the hired man took orders from her the same as from the defendant.

In direct examination the plaintiff’s wife was asked whether prior to the filing of the libel for divorce in July,. 1922, her husband said he wished she were dead. The trial judge in excluding the question said that it might be asked if the statement was made in the presence of some third party. So far as the record discloses the remark made by the plaintiff to his wife was part of a private conversation between husband and wife inadmissible under G. L. c. 233, § 20, First. “ It did not come within the reason of the exception which allows abusive language addressed by a husband in private to his wife to be given in evidence to show abusive treatment.” Commonwealth v. Cronin, 185 Mass. 96" court="Mass." date_filed="1904-02-25" href="https://app.midpage.ai/document/commonwealth-v-cronin-6428439?utm_source=webapp" opinion_id="6428439">185 Mass. 96, 97.

The defendant’s exception to the refusal of the judge to direct a verdict in his favor was based in part on the ground that the allegation in the declaration — to the effect that the plaintiff had forbidden the defendant to allow his wife to remain in the defendant’s house — is a material part of the case not supported by the evidence. This allegation is not a controlling consideration and proof of such specific order by the plaintiff to the defendant was not required. The recital of the testimony in detail would serve no useful purpose. It is enough to say that by it issues of fact were presented and the motion for a directed verdict was denied properly.

The defendant’s request — that unless the defendant kept the plaintiff and his wife apart the plaintiff cannot recover — was given in substance. His third, fourth, fifth and sixth requests, in so far as they were material, were sufficiently covered by the charge. The extent to which the judge should discuss the general rights of a married woman was largely a matter in his discretion. The fourteenth request related to an issue of fact for the jury. No error appears in the refusal of the judge to rule that there was no evidence that the contract was modified or terminated or that the plaintiff requested the defendant to modify or terminate it. The rulings given, as to the right of the wife to live apart from her husband and to support her children by her own labor, and as to the right of the defendant and Mrs. Sherry to contract for her labor and services, sufficiently covered the defendant’s twentieth request for ruling. The charge, considered as a whole, fairly presented to the jury the material issues which they were called upon to decide.

Exceptions overruled.