McGrath v. Sullivan

• Decision Date: 07 June 1939
• Citation: 303 Mass. 327,21 N.E.2d 533
• Parties: McGRATH v. SULLIVAN. SAME v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 327

21 N.E.2d 533

McGRATH

v.SULLIVAN.

SAME

v.SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 7, 1939.

Report from Superior Court, Suffolk County; Williams, Judge.

Actions by John Francis McGrath, Jr., against Frederick Rowe Sullivan, and by the same plaintiff against the same defendant and another, based upon the alleged tortious interference with plaintiff's marital rights. On report from the superior court.

Order in accordance with opinion.

C. W. Lavers, of Boston, for plaintiff.

H. F. Wood, of Boston, for defendants.

LUMMUS, Justice.

The declaration in the action of tort against Sullivan only, numbered 327782 in the Superior Court, contained five counts. The defendant filed what he called a ‘plea in abatement,’ which set up as to the first three counts that they were barred by a former judgment in an action between the same parties, numbered 319916. Of course that was really not matter in abatement, but in bar, and under the practice act could not properly be set up by plea, for pleas in bar in actions at law have long since been abolished. G.L. (Ter.Ed.) c. 231, § 22; Foye v. Patch, 132 Mass. 105, 109, 110.Gallo v. Foley, Mass., 11 N.E.2d 803;Charles I. Hosmer, Inc., v. Commonwealth, Mass., 19 N.E.2d 800. But no question of pleading or practice has been argued, and we deal with the action of the judge upon its merits in point of substantive law. The judge ‘sustained’ the so-called plea, and thus ruled that the defence of res judicata was made out. Apparently no oral evidence was received, but the decision was made upon a comparison of the record in the earlier action with the declaration in the present one.

To test the correctness of his ruling, we must go back to the demurrer in the earlier action numbered 319916, the sustaining of which resulted in a judgment for the defendant Sullivan in that action. Both that action and the present one were based upon the alleged tortious interference by Sullivan with the marital rights of the In the earlier action the declaration set forth criminal conversation between Sullivan and the plaintiff's wife and a resulting separation of the plaintiff and his wife. In the present action the declaration, while setting forth such criminal conversation, alleges no separation of the plaintiff and his wife, and no enticement of her from his house. In other respects the first two counts of the declaration in the present case are identical with counts in the declaration in the earlier case to which a demurrer was sustained. The grounds of the demurrer were that no cause of action was stated and that ‘no action was maintainable for interference or for malicious interference with a marriage contract.’ Obviously, if the declaration in the earlier action did not state a cause of action, the first two counts of the declaration in the present action do not. The demurrer was sustained upon the merits,-upon the proposition that the facts stated did not constitute a valid cause of action. However the declaration in the earlier action may be construed, and whatever the cause of action asserted in it was, the same cause of action is asserted in substantially identical words in the first two counts of the declaration in the present action. It was established by the former judgment,-rightly or wrongly, it is immaterial which-that that cause of action is not a valid one. Abbott v. Bean, Mass., 3 N.E.2d 762.See also Whitney v. Whitney, Mass., 13 N.E.2d 401. As to the first two counts of the present declaration, the former judgment, though rendered upon the sustaining of a demurrer, is a bar.

A possible, and indeed a probable, explanation of the sustaining of the demurrer, notwithstanding the statement in the declaration in the earlier action of criminal conversation and resulting separation, is that that statement was deemed not the gist of the cause of action set forth and relied on, but a mere inducement to the allegation of alienation of affections upon which the claim of recovery was based. If that view was adopted, the sustaining of the demurrer followed naturally, for by the law of this Commonwealth mere alienation of affections, without criminal conversation or any separation of husband and wife, is not an actionable tort. Bigaouette v. Paulet, 134 Mass. 123, 45 Am.Rep. 307;Neville v. Gile, 174 Mass. 305, 54 N.E. 841;Gahagan v. Church, 239 Mass. 558, 132 N.E. 357; Compare Am. Law Inst. Restatement: Torts, s. 683.

The burden was on the defendant Sullivan to prove that the former judgment is a bar to the prosecution of the present action. Tighe v. Skillings, Mass., 9 N.E.2d 532. He has not sustained that burden as to the third count of the present declaration, which appears to set forth and rely upon criminal conversation, even though it is declared to be ‘for the same cause of action as the first and second counts.’ See Evatt v. Willard D. Martin, Inc., Mass., 19 N.E.2d 729. For reasons already stated, it has not been shown that the sustaining of the demurrer was based upon the erroneous ground that criminal conversation is not actionable. The earlier judgment, therefore, constitutes no bar to the prosecution of the third count, which as we construe it is for criminal conversation. There was error in the ruling to the contrary. For similar reasons there was error in the ruling that the former judgment bars recovery in the action against Sullivan and Lee numbered 327781, which is based upon alleged criminal conversation.

The next question is one of abatement. The plaintiff, as early as July 17, 1936, brought a suit in equity against the defendant Sullivan, which is still pending. The suit was based in part at least upon...