83 F.Supp. 40 (D.Mass. 1949), Civ. 7541, Gordon v. Parker

Docket Nº:Civ. 7541
Citation:83 F.Supp. 40
Party Name:Gordon v. Parker
Case Date:January 31, 1949
Court:United States District Courts, 1st Circuit, District of Massachusetts

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83 F.Supp. 40 (D.Mass. 1949)




Civ. No. 7541.

United States District Court, D. Massachusetts

Jan. 31, 1949

Willis A. Downs, of Boston, Mass., for plaintiff.

Allan Roy Kingston, of Somerville, Mass., for defendant.

WYZANSKI, District Judge.

Plaintiff and his wife Naomi are citizens of and domiciled in Pennsylvania. During his service at Lt. Colonel in India, she came to Massachusetts and met defendant who is a citizen and domiciliary of Massachusetts. Plaintiff's complaint alleges that defendant, intending 'to deprive him of comfort, society, aid and assistance of Naomi', enticed her to continue absent from his home (Par. II) and 'debauched and carnally knew the plaintiff's said wife' (Par. III). The parties have stipulated 'that the alleged acts upon which the plaintiff is bringing this action are alleged to have been committed in * * * Massachusetts'.

Defendant moves for summary judgment on the basis of Pa. Act of June 22, 1935, Pamphlet Law 450, as amended by Pa. Act of June 25, 1937, Pamphlet Law 2317, 48 P.S.Pa. § 170 et seq., which, so far as material, provides:

§ 170-- ' * * * all civil causes of action for alienation of affections of husband or wife * * * are hereby abolished * * * .'

§ 172-- 'No act hereafter done within this Commonwealth shall operate to give rise, either within or without this Commonwealth, to any of the causes of action abolished by this act. * * * It is the intention of this section to fix the effect, status, and character of such acts * * * and to render them ineffective to support or give rise to any such causes of action within or without this Commonwealth.'

Since this is an action brought in this Court solely by virtue of the diversity jurisdiction statute, 28 U.S.C.A. § 1332(a)(1), this Court must apply the law of Massachusetts, including its rule of conflict of laws. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487-497, 61 S.Ct. 1020, 85 L.Ed. 1477.

The complaint could be construed as setting forth a single cause of action for alienation of affections. Under this construction the reference to carnal knowledge would be 'not the gist of the cause of action set forth and relied on, but a mere inducement to the allegation of alienation of affections

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upon which the claim of recovery was based. ' McGrath v. Sullivan, 303 Mass. 327, 329, 21 N.E.2d 533, 535. But, as the McGrath case also teaches, it is equally possible to adopt an alternative construction of the complaint under which causes of action for both criminal conversation and alienation of affections are presented. Bigaouette v. Paulet, 134 Mass. 123, 126, 45 Am.Rep. 307.

Since no evidence has been taken as yet, I shall dispose of the present motion upon the basis of the second view. However, to promote a more orderly trial, I direct that within one week after the filing of this opinion plaintiff amend his complaint so as to present clearly to the trier of fact in two different courts the causes of action on which he relies. Federal Rules of Civil Procedure, rule 15(a), 28 U.S.C.A. See also Rule 10(b).

There is no conflict of laws problem connected with the cause of action for criminal conversation. In Pennsylvania as in Massachusetts there has long existed a common law action against a defendant who has sexual intercourse with a woman without her husband's consent. Matusak v. Kulczewski, 295 Pa. 208, 145 A. 94, 68 A.L.R. 557; Matheis v. Mazet, 164 Pa. 580, 30 A. 434; McGrath v. Sullivan, supra. The Pennsylvania Acts of June 22, 1935 and June 25, 1937 do not abolish or modify that cause of action. See 85 U.of Pa.L.Rev. 110, 111; 11 Temple L.Qu. 396, 399 n. 33. But see contra Daily v. Parker, D.C.N.D. Ill., 61 F.Supp. 701, 702.

With respect to an action for alienation of affections there is a difference between the two Commonwealths. Massachusetts has retained in modified form the husband's common law right to hold liable a defendant who has induced iS wife to deprive him of her consortium. But Pennsylvania has enacted that in that state all actions for alienation of affections are abolished and that no act within Pennsylvania shall give rise to an action for alienation of affections. The question is whether Massachusetts would extend the asserted underlying policy of the Pennsylvania statute to bar a suit brought in the courts of Massachusetts by a Pennsylvania husband against a Massachusetts paramour on account of conduct within Massachusetts.

In the literal sense of the phrase this is not a question of 'conflict of laws'. For though Pennsylvania has a law governing suits in her courts and conduct within her borders, she has no law purporting to regulate her domiciliaries' right to bring actions in other states based on conduct outside Pennsylvania. Yet, because of the somewhat divergent policies of the different states whose interests are involved, the problem is one which would properly be called one of private international law. Cheshire, Private International Law (3rd ed.), pp. 5, 6.

Like most other American states, Restatement, Conflict of Laws, § 378; Western Union Tel. Co. v. Brown, 234 U.S. 542, 547, 34 S.Ct. 955, 58 L.Ed. 1457;...

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