Labrie v. Midwood

• Decision Date: 07 January 1931
• Citation: 273 Mass. 578,174 N.E. 214
• Parties: LABRIE v. MIDWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 578

174 N.E. 214

LABRIE

v.MIDWOOD.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 7, 1931.

Exceptions from Superior Court, Bristol County; D. T. O'Connell, Judge.

Action by Frank Labrie against George H. Midwood with trustee process. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained.H. E. Clarkin and J. T. Farrell, both of Fall River, for plaintiff.

D. H. Simon for defendant.

CROSBY, J.

This is an action of tort. The declaration contains two counts, the first alleging criminal conversation by the defendant with the plaintiff's wife, and the second loss of consortium. At the close of the evidence the defendant filed certain requests for instructions which were refused subject to his exception. He also excepted to the instructions given so far as they were inconsistent with the requests. During the course of the trial he excepted to the admission and exclusion of certain evidence. The evidence was ample to warrant a finding that the defendant committed the crime of adultery with the wife of the plaintiff as alleged in the first count. There was also evidence under the second count that the defendant intentionally and unlawfully, for the purpose of alienating the affections of the plaintiff's wife from him, induced her to leave the plaintiff's house whereby he lost her society, companionship and assistance, and that her affection for the plaintiff was thereby alienated and destroyed.

The defendant's first request that there was no evidence that the defendant alienated the affection of the plaintiff's wife was rightly refused. That question was properly submitted to the jury upon the evidence. The second, third and fourth requests, in substance that if the jury found that the plaintiff ordered his wife to leave his house and told her he would not, or could not, live with her there could be no recovery on the second count, were rightly refused. The issues raised by these requests were fully and correctly dealt with in the instructions to the jury. The fifth request that there was no evidence that the defendant had any immoral relations with the plaintiff's wife before May 14, 1927, could not properly have been given as there was evidence to justify a finding that such relations had existed before that date. The eleventh request that if the plaintiff and his wife separated by mutual agreement there could be no recovery on the second count was in substance covered by the charge.

Subject to the exception of the defendant four bank officials, called by the plaintiff, testified that between May 17 and June 17, and before this action was commenced, and all within thirty days after a raid by police officers had been made at the defendant's house on May 18, 1927, the defendant withdrew from four savings banks the sum of $13,765.22. The evidence relating to the visit of the police officers warranted a finding that at that time the defendant and the plaintiff's wife committed the offense charged in the first count of the declaration. The withdrawal of these deposits by the defendant soon after he was found by the police officers in his house with the wife of the plaintiff under the circumstances disclosed was some evidence that the defendant was conscious of liability to the plaintiff and endeavored to escape from it. Banfield v. Whipple, 10 Allen, 27, 31, 87 Am. Dec. 618;Portland Gas Light Co. v. Ruud, 242 Mass. 272, 275, 136 N. E. 75;Carroll v. Carroll, 262 Mass. 10, 12, 159 N. E. 517;D'Arcangelo v. Tartar, 265 Mass. 350, 352,165 N. E. 87.

In his final instructions upon the question of loss of consortium the judge said to the jury in substance that if the plaintiff told his wife that he could not live with her and she should leave his house, and that as a result of such statement she left, no recovery could be had for loss of consortium under the second count, but that, if the acts and conduct of the defendant were controlling cause of the separation between the plaintiff and his wife, the jury would be justified in finding for the plaintiff on the second count. The instructions so given were sufficiently favorable to the defendant. It was not necessary for the plaintiff to prove that the defendant's conduct was the sole cause of his wife's leaving him. The instruction that it was sufficient to maintain the action if the defendant's conduct was the controlling cause and without it she would not have left was correct. Hadley v. Heywood, 121 Mass. 236;Gahagan v. Church, 239 Mass. 558, 560, 132 N. E. 357;Bradstreet v. Wallace, 254 Mass. 509, 150 N. E. 405;Sherry v. Moore, 258 Mass. 420, 423, 155 N. E. 441; Id., 265 Mass. 189, 195, 163 N. E. 906. See Negus v. Foote, 228 Mass. 375, 117 N. E. 351.

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