Negus v. Foote

• Decision Date: 30 October 1917
• Citation: 228 Mass. 375
• Parties: HALBERT E. NEGUS v. HENRY FOOTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 375

HALBERT E. NEGUS v. HENRY FOOTE.

Supreme Judicial Court of Massachusetts, Franklin.

October 30, 1917

September 17, 1917.

Present: RUGG, C J., BRALEY, DE COURCY, & PIERCE, JJ.

Husband and Wife. Alienation of Affections. Enticement and Seduction. Evidence Circumstantial, Matters of common knowledge.

In an action for enticing and seducing the plaintiff's wife and thereby depriving the plaintiff of connubial consortium, where there is evidence of inclination and opportunity for adultery between the plaintiff's wife and the defendant, the plaintiff may be allowed to prove that, after he had lived apart from his wife for more than a year during a period when the defendant was living in the same house with the plaintiff's wife, the plaintiff's wife had a child.

It here was said that the jury could find as a matter of common knowledge and experience that a child born on a certain day was begotten approximately nine months before.

In the same case in addition to the evidence above described, there was evidence that, when the plaintiff's wife was well advanced in pregnancy and the defendant knew her condition he said, "that he would be very glad to marry her if it was so that he could, if it was so that she could get married." Held, that the case, including the evidence wrongly excluded, should have been submitted to the jury.

TORT for enticing and seducing the plaintiff's wife and thereby winning her affections and alienating her affections from the plaintiff, by reason of which the plaintiff lost the "affection, aid, assistance, comfort and consortium" of his wife. Writ dated September 7, 1915.

In answer to a motion by the plaintiff for specifications, the defendant filed specifications, in which he alleged that the enticement and seduction took place at Millers Falls in the town of Montague, that the defendant had unlawful sexual intercourse with the plaintiff's wife at that place, and, as to other times and places at which the defendant had unlawful intercourse with the plaintiff's wife, alleged that these were at Millers Falls in the town of Montague in the house occupied before September, 1914, by the plaintiff and his wife, Mabel L. Negus.

The specifications concluded as follows: "The plaintiff says that it is impossible to answer more fully the specific interrogatories of the defendant in the manner and form in which the same are set forth in the defendant's motion for specifications, but the plaintiff more fully specifies as follows: That the conduct of the defendant and the said Mabel L. Negus prior to, and after, September, 1914, was such as to show an adulterous disposition; that the plaintiff was not at home after September 12, 1914, and had no intercourse with his wife the said Mabel L. Negus after that date; that the defendant during the months of December, 1914, and January and February, 1915, occupied the same house with the said Mabel L. Negus, that a child was born to the said Mabel L. Negus on the fifth day of October, 1915.

"These specifications apply to both count one and count two of the plaintiff's declaration."

The defendant moved to expunge the matter contained in the last two paragraphs of the specifications as irrelevant and immaterial. His motion was allowed by Aiken, C. J.

The plaintiff then amended his declaration by adding a third count as follows:

"Count 3. And the plaintiff says that Mabel L. Negus is his lawfully wedded wife; that the defendant on or about the first day of January A. D. 1915 at Montague in the county of Franklin and at divers other times did have unlawful carnal knowledge of the body of the said Mabel L. Negus and did beget upon the body of the said Mabel L. Negus a child, of which child she was delivered on the fifth day of October A. D. 1915; whereby and by reason whereof the plaintiff lost the aid, comfort, and consortium of his said wife and was otherwise greatly injured and damaged."

The amendment was allowed by Aiken, C. J. The defendant demurred to the third count of the declaration as amended on the ground that a declaration, that a child born by the plaintiff's wife after her marriage to the plaintiff was illegitimate, was inadmissible on the part of the plaintiff.

The demurrer was overruled by Aiken, C. J., and the defendant appealed.

The case was tried before Aiken, C. J. The evidence introduced is described in the opinion. The plaintiff made the following offer of proof: "The plaintiff offers to show that from early September, 1914, until May, 1915, Negus, the plaintiff, did not have access to his wife; that during the months of January and February, 1915, Foote, the defendant, roomed and boarded in the house in which the plaintiff's wife lived and was the only man living there; that he had roomed and boarded there to some extent during November and December and there had been much intimacy between them for at least six months; that in midsummer Mr. Daly saw this woman in the family way in July and that she gave birth to a child on the fifth of October, 1915."

The Chief Justice ruled as follows: "The court excludes the offer to show the condition of Mrs. Negus in July and the birth of the child in October. I do not exclude any evidence of intimacy in respect to conduct further that you desire to show. You have already shown that. I do not know whether it is offered as an offer to show more than you have shown. If it is, I am not excluding it, but those two features of your offer I will exclude." The plaintiff excepted to the exclusion of the evidence.

The Chief Justice ruled that the action could not be maintained upon the evidence presented, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.

H. E. Ward, (F.

L. Greene with him,) for the plaintiff.

W. A. Davenport, for the defendant, submitted a brief.

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 ...