Parker v. Gordon

• Decision Date: 22 December 1949
• Docket Number: No. 4431.,4431.
• Citation: 178 F.2d 888
• Parties: PARKER v. GORDON.
• Court: U.S. Court of Appeals — First Circuit

178 F.2d 888 (1949)

PARKER v. GORDON.

No. 4431.

United States Court of Appeals First Circuit.

December 22, 1949.

Allan Roy Kingston, Boston, Mass. (Hubert W. Coffin, Christopher J. Muldoon, Jr., and Hale, Sanderson, Byrnes & Morton, Boston, Mass., with him on brief) for appellant.

Willis A. Downs, Boston, Mass. (John J. O'Neill, Boston, Mass, with him on brief) for appellee.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.

MAGRUDER, Chief Judge.

Charles Gordon filed in the court below a complaint in tort against Stanley W. Parker for loss of consortium. The amended complaint, which was in two counts, is set forth in the footnote.¹ Judgment was given for the plaintiff on a jury verdict, and defendant appeals.

Federal jurisdiction was invoked on the ground of diversity of citizenship, plaintiff being a citizen of Pennsylvania and defendant of Massachusetts.² Defendant moved for summary judgment on the basis of a statute of Pennsylvania abolishing "all civil causes of action for alienation of affections of husband or wife". 48 P.S.Pa. § 170. In conjunction with this motion it was stipulated "that the alleged acts upon which the plaintiff is bringing this action are alleged to have been committed in * * * Massachusetts". Judge Wyzanski denied defendant's motion for summary judgment, in an interesting opinion reported in D.C. 83 F. Supp. 40. Thereafter the case was tried and submitted to the jury on the theory that the law of Massachusetts was applicable, and on the present appeal no error is urged in this respect. We therefore do not consider any possible questions of the conflict of laws.

Plaintiff Gordon was born and raised in Pennsylvania. After their marriage in 1940, he and his wife Naomi made their home in Pittsburgh, where he had a job. In March, 1941, Gordon was called to active duty as a reserve officer in the U.S. Army, and sent to a post in Boston Harbor. During the ensuing months they lived together in an apartment in Winthrop, Massachusetts. Gordon left for overseas in March, 1942, and Mrs. Gordon went to Scottdale, Pennsylvania, to live with her husband's family. In December, 1943, Mrs. Gordon came back to Massachusetts to visit her former neighbors in Winthrop, and on this occasion she met the defendant Parker. It did not take long for that chance meeting to ripen into a warm friendship. Mrs. Gordon returned to Pennsylvania in February, 1944, but was back again in Winthrop for another visit in March, and saw Parker again. In May, 1944, Mrs. Gordon came up for a third visit, but this time she stayed at a hotel in Boston rather than with friends. Her last visit to Boston without her husband was over the July 4th weekend of 1944.

Starting shortly after their first meeting, and during all of Mrs. Gordon's abovementioned visits to Boston, she and Parker had numerous dates together, swimming, bowling, dancing, dining out, or dining in Parker's apartment sometimes with no third person present. There were "going-away" kisses, "welcome-back" kisses, and "just regular" kisses. Parker rather grudgingly admitted to other occasional familiarities indicative of a less than discreet relationship between him and Mrs. Gordon. Both denied on the witness stand that they had ever had adulterous intercourse. Gordon, however, testified that during a meeting he had with Parker, after divorce proceedings against Mrs. Gordon had been instituted, Parker admitted that he had had "improper sexual relations" with Mrs. Gordon, but added: "The conversation goes between you and I only, and if you think you can prove it, go ahead. As far as I am concerned, you can see my attorney". This conversation was denied by Parker.

In the intervals between Mrs. Gordon's visits to Boston, Parker kept up his contact with her by long-distance telephone, and by correspondence. Mrs. Gordon thought she had destroyed Parker's letters, but Mr. Gordon's "meddlesome aunt", to use a phrase of the district judge, fished out from the incinerator and pieced together the torn fragments of three of these letters, which eventually were turned over to Gordon, and were introduced as exhibits at the trial below. The letters look silly in print, and would hardly be included among the classics of amatory writing. They are, however, sprinkled with terms of endearment and erotic allusions which betoken a relationship not casual and circumspect, but intimate indeed. From certain expressions in the letters, together with other evidence in the case, a jury would be warranted in inferring that Parker's intention was to break up the marital relationship between Mrs. Gordon and her husband, and to appropriate her for himself. We refer, for instance, to expressions such as "the speed of our pickup on loving"; "Come on quit haunting me and join me for good!"; "Were you today to join me for life we'd just sail right along on a breeze having fun, having fights, having love, having many friends. Gosh, do we click!"; "Gee this week how I wished I could spoil you again — but this time for life." Parker's explanation that he was merely trying to keep up Mrs. Gordon's morale during the period of her enforced separation from her husband might not unreasonably be discredited.

Gordon testified that he noticed a change in the tone of his wife's letters to him overseas, coinciding with the inception of her acquaintanceship with Parker. Mrs. Gordon met her husband in August, 1944, in Washington, D.C., upon his return from India. Gordon testified: "There was a complete metamorphosis in her reactions. My desires for her, of course, had been unchanged. But I say she was neurotic. The matter of sexual relations were entirely out of the question with her"; and further he said that there were no sexual relations between them from the time Gordon returned from abroad. Shortly after his arrival in Washington, he and his wife proceeded to Fort Harrison, Indiana, where they occupied an apartment together while he took a six-weeks training course. Upon their return to Scottdale, Pa., Gordon saw for the first time the three letters from Parker above referred to. Gordon consulted a lawyer with reference to a divorce. He decided to try for a reconciliation, and he and Mrs. Gordon embarked on what he described as a "second honeymoon". En route to Canada, they stopped for a few days in Boston, renewing acquaintances, and incidentally the two of them dined with Parker at the latter's apartment. After a short stay in Canada, during which it was evident, according to Gordon, that the reconciliation was not working out, they returned to Boston, picked up their car, and drove to Scottdale, Pa. Mrs. Gordon remained at the home of her husband's parents at Scottdale, Pa., while he took a three-months course in Military Government at Princeton, New Jersey. In early spring of 1945 Gordon instituted a divorce suit against his wife, and the divorce was eventually granted.

According to Mrs. Gordon's testimony she had been faithful to her husband throughout, had not ceased to love him, and had had no desire to separate from him; she attributed the estrangement which developed after his return to this country in August, 1944, to his changed attitude, rather than to hers. She testified that "all the time" during the period after his return, up to the filing of the divorce suit, they had lived together and had had relations "as husband and wife"; that at or about the time of the filing of the divorce suit her husband had peremptorily ordered her to remove her things from the home of Mr. Gordon's parents; and that after that she moved out and did not live with her husband thereafter.

When the evidence was all in, defendant filed a motion for a directed verdict on both counts. The motion was denied. In this there was no error, if for no other reason than that there was certainly sufficient evidence to warrant a finding of criminal conversation, and this, admittedly, would have made out a cause of action under the Massachusetts law.

Defendant then presented certain requests for rulings. So far as appears, the district judge did not expressly rule on these requests one by one. But with one possible exception, to which we shall refer later, the requests for rulings were in substance, we think, embodied in the ensuing charge to the jury. When the judge had finished with his main charge, he asked: "Is there any point that I have omitted?". Counsel for defendant stated that he had "nothing to suggest." The jury retired to consider its verdict, but subsequently returned for further enlightenment from the judge, at which time the court gave the jury certain additional instructions which we shall refer to at a later point.

The jury brought in a verdict for the plaintiff on Count 1, in the sum of $5,000, but found for the defendant on Count 2. On the same day judgment was entered for the plaintiff on Count 1, and for the Defendant on Count 2. A memorandum by the district judge, explaining his reasons for not setting aside the verdict on Count 1, is reported in D.C., 83 F.Supp. 43.

Thereafter, defendant moved to set aside the verdict for the plaintiff on Count 1, and the judgment entered thereon, and for the entry of judgment for the defendant notwithstanding the verdict. This motion was denied, for the reasons stated in a memorandum reported in D.C., 83 F.Supp. 45.

The legal wrong here in question, as recognized by the Massachusetts courts, is sometimes inaccurately described as the tort of "alienation of affections". Dow v. Bulfinch, 1906, 192 Mass. 281, 283, 78 N.E. 416. However, the Supreme Judicial Court of Massachusetts has repeatedly stated that alienation of affections alone is not a substantive cause of action, but merely aggravates the damages where the wife is debauched or enticed away. Evans v. O'Connor, 1899, 174 Mass. 287, 291, 54 N.E. 557, 75 Am.St.Rep. 316; Neville v. Gile, 1899, 174 Mass. 305, 306, 54 N.E. 841; Gahagan v. Church, 1921, 239 Mass. 558, 559,...