White v. Thomson
85 N.E.2d 246
Mass.
1949
Check Treatment
Lummus, J.

This case comes here on the appeals of the plaintiffs from an interlocutory decree sustaining the demurrers to the bill of the defendants Marian Thomson and Earl R. White, and from a final decree dismissing the bill.

The bill was filed May 16, 1947. The plaintiffs are the minor son and daughter, and the wife, of the defendant Earl R. White, all of Attleboro. The defendants, other than two banks that are not charged with wrongdoing, are said Earl R. White and one Marian Thomson, a married woman living in Attleboro. The bill alleges substantially the following. Prior to July, 1944, the Whites lived together as a happy family. Prior to that time Earl R. White and Marian Thomson had met, and she “contrived, planned, schemed, and determined to break up the plaintiff’s happy home and family life,” to entice Earl R. White from them, and to deprive the plaintiffs of his affections and consortium. Early in August, 1944, she enticed and procured Earl R. White to leave the plaintiffs, to continue to absent himself from them, to fail to provide for them, to fail or refuse to fulfil his marriage vows and obligations and his paternal duties, and “virtually to live with her.” She obtained a divorce from her own husband, and induced Earl R. White to bring a libel for divorce which is still pending. She illegally lived with Earl R. White “as husband and wife, unlawfully held themselves [out] to be such, represented to the public that [she] Mrs. Thomson was Mrs. Earl R. White . . . and . . . pretended to be and impersonated *142Mrs. White.” “The plaintiffs are the legal and actual dependents of Dr. White but he is depriving them of proper support and maintenance in order to support and maintain Mrs. Thomson’s family. At present, Dr. White is spending, squandering and wasting his money so profusely and improvidently at the will of Mrs. Thomson that in all probability he will entirely deplete his estate.” Mrs. Thomson is insolvent and has no. assets.

The law does not attempt to control or limit human affections. It is only where, by alienating the affections of one spouse, the result is adultery or the ceasing of the spouses to live together, that the law recognizes that a tort has been committed. Neville v. Gile, 174 Mass. 305, Houghton v. Rice, 174 Mass. 366. Webber v. Benbow, 211 Mass. 366. Longe v. Saunders, 246 Mass. 159. Sherry v. Moore, 258 Mass. 420, 423. McGrath v. Sullivan, 303 Mass. 327, 329. The allegation in the bill that the defendant Thomson induced the defendant Earl R. White “virtually to live with her,” is insufficient to show either adultery or deprivation of consortium. Houghton v. Rice, 174 Mass. 366. The further allegation that “Dr. White and Mrs. •Thomson illegally lived as husband and wife,” is not, we think, equivalent to the usual allegation that she debauched and carnally knew him, but states merely a conclusion of law from undisclosed facts. But we assume that the allegation that Mrs. Thomson enticed Dr. White to leave Mrs. .White and their home and deprive Mrs. White of the companionship and consortium of Dr. White states a cause of action in tort.

, Since Kenyon v. Chicopee, 320 Mass. 528, it is no objection to the maintenance of a bill for equitable relief that the right which the plaintiff seeks to protect is a personal right •rather .than a property right. But in that case this court said, “Doubtless there are personal rights .of such delicate and intimate character that direct enforcement of them by any process of the court should never be attempted” (page 534). Restatement: Torts, § 943, declares: “The practicability of drafting and enforcing the order or .judgment is one *143of the factors to be considered in determining the appropriateness of injunction against tort.” And in comment as to that section, on page 722, it is said, “For example injunction against alienation of affections would probably only serve to add fuel to the flame.” In Baumann v. Baumann, 250 N. Y. 382, 387, 389, are statements that “Equity cannot by injunction restrain conduct which merely injures a person’s feelings and causes mental anguish,” and that “Attempts to govern the morals of people by injunctions can only result in making ridiculous the courts which grant such decrees.” The great weight of authority is against equitable relief by injunction in cases of deprivation of the exclusive right to marital intercourse or deprivation of. consortium. Baumann v. Baumann, 250 N. Y. 382. Somberg v. Somberg, 263 N. Y. 1. Lowe v. Lowe, 265 N. Y. 197. Marquis v. Marquis, 291 N. Y. 799. Hodecker v. Stricker, 39 N. Y. Sup. 515. Snedaker v. King, 111 Ohio St. 225. Bank v. Bank, 180 Md. 254. Compare Henley v. Rockett, 243 Ala. 172. We think that no such injunctive relief can be granted in this Commonwealth.

As to the rights of the minor children of the defendant White, there are recent cases recognizing the right of minor children to sue for damages one who has deprived them of the care and society of their parent. Daily v. Parker, 152 Fed. (2d) 174, 162 A. L. R. 819. Johnson v. Luhman, 330 Ill. App. 598. But other recent cases deny the existence of that right. Taylor v. Keefe, 134 Conn. 156. Rudley v. Tobias, 84 Cal. App. (2d) 454. At any rate, we think that in such a case there can be no equitable relief by injunction. Bartholomew v. Workman, 197 Okla. 267.

So far as the defendant Earl R. White is concerned, statutory remedies exist which seem to us adequate. If the allegations of the bill are true, he may be put under guardianship as a spendthrift (G. L. [Ter. EdJ c. 201, §§ 8, 38), and may be compelled to support his wife and minor children. G. L. (Ter. Ed.) c. 209, §§ 32, 37.

We think that the interlocutory and final decrees must be

Affirmed.