Negus v. Foote

• Decision Date: 30 October 1917
• Parties: NEGUS v. FOOTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 375

117 N.E. 351

NEGUS

v.FOOTE.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 30, 1917.

Exceptions from Superior Court, Franklin County; John A. Aiken, Judge.

Action by Halbert E. Negus against Henry Foote. A verdict was directed for defendant. Plaintiff excepts. Exceptions sustained.

Harry E. Ward, of Greenfield, for plaintiff.

Wm. A. Davenport, of Greenfield, for defendant.

BRALEY, J.

The cause of action stated in each count of the amended declaration is for loss of consortium, and the allegation of the alienation of the affections of the plaintiff's wife through the alleged acts and conduct of the defendant only go in aggravation of damages. Hadley v. Heywood, 121 Mass. 236;Nolin v. Pearson, 191 Mass. 283, 287, 288, 77 N. E. 890,4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605,6 Ann. Cas. 658. While the action can be maintained without proof of adultery (Nolin v. Pearson, ubi supra; Webber v. Benbow, 211 Mass. 366, 368, 97 N. E. 758), it is clear upon the record that to make out a case for the jury the plaintiff was obliged to offer evidence of her infidelity in which the defendant was a participant. It has long been settled that prior acts of familiarity, unless in the discretion of the judge they are too remote, are admissible to show an adulterous disposition, and there is no difference between acts of familiarity and actual adultery, when offered for the purpose indicated, except in the additional weight and significance of the latter act. Beers v. Jackman, 103 Mass. 192;Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110.

It was one link in the chain of proof to show adultery by the wife, and as the jury would have been warranted in finding nonaccess by the plaintiff during the entire period covered by the offer of proof which was excluded, evidence that his wife had been delivered of a child tended to prove the offense. Com. v. Morrissey, 175 Mass. 264, 56 N. E. 285. See Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378. But if no evidence had been introduced from which in connection with the offer of proof the jury would have been warranted in finding that the defendant was the father, the plaintiff has not been prejudiced. ‘The evidence by which the act of adultery is proved is seldom direct. The natural secrecy of the act makes it ordinarily impossible to prove it except by circumstantial evidence,’ and ‘the intent and disposition of the parties toward each other may give character to their relations, and can only be ascertained as all moral qualities are from the acts and declarations of the parties.’ To this end their antecedent and subsequent conduct are admissible if it has a tendency to prove the fact. Thayer v. Thayer, ubi supra. The ruling excluded proof of the birth of a child October 5, 1915. If the jury found the wife was delivered on this date, they further could find in accordance with common knowledge and experience that the child was begotten nine months previously, or approximately in January, 1915.

It was in evidence before the offer was made, and the jury could find, that the plaintiff from May to September, 1914, worked for his father-in-law, one Ross, by whom the defendant also was employed as a chauffeur. The plaintiff with his wife and minor daughter kept house by themselves, but the defendant boarded and lodged with his employer. During the summer of 1914 the plaintiff's wife and defendant ‘were riding together a good deal, * * were frequently in the garage together and often sat together upon the porch in the evening.’ And the plaintiff further testified that ‘his wife frequently remained in the garage with Foote in the evening after every one else had left’; that ‘h...