Bradstreet v. Wallace

• Decision Date: 02 February 1926
• Citation: 150 N.E. 405,254 Mass. 509
• Parties: BRADSTREET v. WALLACE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 509

150 N.E. 405

BRADSTREET

v.WALLACE.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 2, 1926.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Laura Bradstreet against Alice F. Wallace to recover for loss of consortium of plaintiff's husband. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

F. H. Chase, of Boston, for plaintiff.

H. albers, of Boston, for defendant.

PIERCE, J.

This is an action to recover damages for the alleged intentional and wrongful acts of the defendant, whereby the plaintiff was deprived of the society of her husband for substantial periods of time before the institution of this pending action. 3 Bl. Com. 139; Winsmore v. Greenback, Willes, 577; Walker v. Cronin, 107 Mass. 555, 567;Tasker v. Stanley, 153 Mass. 148, 26 N. E. 417,10 L. R. A. 468; Philp v. Squire, 1 Peake, 114; Berthon v. Cartwright, 2 Esp. 480; Smith v. Kaye, 20 T. L. R. 261; Sheperd v. Wakeman (13 Car. II) Siderfin's 79. Shouler, Mar., Div., Sep. & Dom. Rel. (6th Ed.) vol. 1, § 677; Salmond on Torts, § 116; Clerk and Lindsell on Torts, 28, and cases there considered. The declaration does not allege and the plaintiff does not contend that there was criminal conversation; nor does she seek damages for the mere alienation of the marital affections.

[1] At common law the husband was entitled to the whole of the wife's marital affection and to the whole of such society and comfort as her physical state and mental attitude render her capable of affording him. Lynch v. Knight, 9 H. L. C. 577, 589; Kelley v. New York, New Haven & Hartford Railroad, 168 Mass. 308, 311, 46 N. E. 1063,38 L. R. A. 631, 60 Am. St. Rep. 397.

‘A husband is not the master of his wife, and can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium-the right to the conjugal fellowship of the wife, to her company, co-operation and aid in every conjugal relation.’ Bigaouette v. Paulet, 134 Mass. 123, 124 (45 Am. Rep. 307).

‘He retains the unmodified right to her conjugal society, even if her refusal to recognize this right affords him no ground for an absolute divorce, and he may recover damages for loss of consortium when caused by injuries to her person through the wrongs of others, as well as for criminal conversation with her.’ Nolin v. Pearson, 191 Mass. 283, 286, 77 N. E. 890, 891 (4 L. R. A. [N. S.] 643, 114 Am. St. Rep. 605,6 Ann. Cas. 658).

Under modern conditions there are no distinctions in the relative rights of husband and wife to maintain an action for loss of consortium against third persons, whose wrongful acts render the one or the other of them, as the case may be, less capable of performing his or her marital duties. Nolin v. Pearson, supra; Feneff v. New York Central & Hudson River Railroad, 203 Mass. 278, 280, 89 N. E. 436,24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291;Bolger v. Boston Elevated Railway, 205 Mass. 420, 91 N. E. 389;Webber v. Benbow, 211 Mass. 366, 97 N. E. 758.

In the closely related action of an employer for the loss of the services of a servant, or of a parent for the loss of the constructive services of his children who are minors, and not engaged by contract to serve some other person exclusively, the master or the parent has an action for knowingly enticing servants away from their employment, as also to obtain redress for injury to his domestic or paternal rights if his child be beaten or injured or taken or kept from his custody or control, and especially if his daughter is debauched and thereby rendered ill. Jones v. Brown (1794) 1 Esp. 217; Berringer v. Great Eastern Railway (1879) 4 C. P. D. 163; Evans v. Walton (1867) L. R. 2 C. P. 615. An action was allowed for temporary loss of services in Woodward v. Washburn, 3 Denio, 369. The opinion contains a collection of authorities and a full discussion of the principle of law involved. Ames v. Union Railway, 117 Mass. 541, 19 Am. Rep. 426.

[3] ‘At the conclusion of the evidence, the defendant duly made a...