Dow v. Bulfinch

• Citation: 78 N.E. 416,192 Mass. 281
• Parties: DOW v. BULFINCH.
• Decision Date: 19 June 1906
• Court: United States State Supreme Judicial Court of Massachusetts

192 Mass. 281

78 N.E. 416

DOW v. BULFINCH.

Supreme Judicial Court of Massachusetts, Essex.

June 19, 1906

COUNSEL

James H. Sisk, William E. Sisk, and Richard L. Sisk, for plaintiff.

Wm. H Niles, for defendant.

OPINION

HAMMOND J.

This is an action in which the plaintiff seeks to recover damages for the alienation of his wife's affections by the defendant. The trial was upon the first count in the declaration which alleged that the defendant at various times between August 1, 1896, and July 21, 1902, intending to alienate and destroy the affection of the plaintiff's wife, wrongfully and wickedly debauched and carnally knew her, by means whereof her affection for the plaintiff was wholly alienated, etc.

The defendant, prior to August, 1896, had built a block, the first floor of which was divided into stores, 'the second floor into two tenements, each of which contained five rooms and a bathroom, and a common hall dividing both tenements.' The third floor was a duplicate of the second. The plaintiff with his wife occupied a tenement on the second floor from August 1, 1896, to May, 1902. The evidence tended to show that, beginning shortly after the plaintiff moved into this tenement, the defendant 'was accustomed to visit' there 'two or three times a week in the forenoon, and one or two times a week in the afternoon, and that this continued substantially down to the time the plaintiff ceased to live in the defendant's blcok;' that the plaintiff was not present; that the visits in the forenoon lasted 'from fifteen minutes to one hour,' and those in the afternoon 'from fifteen minutes to all afternoon'; and that, as a rule, after the defendant entered the tenement the door was locked. The plaintiff's wife was under 30 years of age, and the defendant, who was a druggist carrying on business a short distance from the block was between 40 and 50 years of age. The doors of the various tenements were generally kept locked.

1. One Burton called by the plaintiff testified that during four months in 1897 she lived with the family of one Thompson, who occupied the tenement on the third floor directly above the plaintiff's tenement; that the first time she heard the plaintiff's wife and the defendant together they were in the dining room of the plaintiff's tenement, and the witness heard 'the click of glasses and a noise as though they were stirring something in a pitcher with a spoon;' that she heard their voices but did not hear what they said. She further testified that at another time she heard them use terms of endearment towards each other, and heard also a noise 'either like patting or kissing,' she 'could not tell which'; that at this time she was in a bedroom in the Thompson's tenement, dusting around the heaters; that heating pipes came from the plaintiff's tenement to heat the rooms in the Thompson tenement. On cross-examination she testified that at the time she heard the language and noise she was on the floor 'dusting around the heaters'; that 'there was a loose board there was a large opening at the steampipes, and I was down dusting and fixing the place and you could hear very plainly, and I heard it,' that she could not say whether there was an opening into the room below, 'but the boards were up so that the partition was so thin between that I could hear plainly, and the space around the pipes was such that I could hear plainly'; that she did not have 'her ear down' there, but was down on her knees and heard the sounds; that she listened after she heard a few words. It was subsequently shown that the room where the witness was at work dusting at the time of hearing the above conversation and noise was directly over the plaintiff's bedroom. The plaintiff testified that the collars on the steam pipes, which ran through his tenement to the one above, frequently dropped from their position. There was no other evidence in the case of words of endearment. There was evidence that this witness was hostile in her feelings toward the defendant.

One Palmer, a witness called by the plaintiff, who occupied a...