Gahagan v. Church

• Decision Date: 13 October 1921
• Citation: 132 N.E. 357,239 Mass. 558
• Parties: GAHAGAN v. CHURCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 558

132 N.E. 357

GAHAGAN

v.CHURCH.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 13, 1921.

Exceptions from Superior Court, Hampshire County F. W. Fosdick, Judge.

Action by James A. Gahagan against Austin E. Church. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

John C. & Thomas J. Hammond, of Northampton, for plaintiff.

William A. Davenport and Charles Fairhurst, both of Greenfield, for defendant.

DE COURCY, J.

The plaintiff's action is based on loss of consortium-that is, his right to the society, conjugal affections and assistance of his wife. Alienation of affections alone is not a substantive cause of action in this commonwealth, but merely aggravates the damages where the wife is debauched or enticed away. Neville v. Gile, 174 Mass. 305, 54 N. E. 841. It was not necessary for the plaintiff to allege or prove adulterous intercourse, as the action is not for criminal conversation. Houghton v. Rice, 174 Mass. 366, 54 N. E. 843,47 L. R. A. 310, 75 Am. St. Rep. 351. His claim is that the defendant, with malice or improper motives, persuaded and enticed his wife to leave his home. At common law such invasion of his rights has long been actionable. Winsmore v. Greenbank, Willes's Rep. 577; Nolin v. Pearson, 191 Mass. 283, 288, 77 N. E. 890,4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605,6 Ann. Cas. 658;Webber v. Benbow, 211 Mass. 366, 97 N. E. 758;Geromini v. Brunelle, 214 Mass. 492, 102 N. E. 67,46 L. R. A. (N. S.) 465.

The evidence would warrant the jury in finding the following facts: After the plaintiff and his wife had lived in Easthampton for six years, in June, 1919, they moved with their five young children to a farm in Ashfield, which the plaintiff purchased from the defendant. Mrs. Gahagan then met the defendant for the first time. During the months following there were numerous acts of familiarity between them, the defendant frequently calling at the plaintiff's house, sometimes in the latter's absence. During the summer of 1920 at one time they were seen seated on a barrel, with his arm around her waist; at another time sitting together on the grass by the roadside; and on the way to and from a dance she sat on his knee, although there was ample room on the wagon seat. On August 5, 1920, the plaintiff saw them standing together in the pasture, and the defendant had his arms around Mrs. Gahagan's waist. Gahagan then told the defendant to ‘keep away from her and keep away from her entirely and keep away from the place and warned him.’ According to the plaintiff's...