Perry v. Carter

• Decision Date: 07 April 1955
• Citation: Perry v. Carter, 125 N.E.2d 780, 332 Mass. 508 (Mass. 1955)
• Parties: Anthony J. PERRY v. James B. CARTER.
• Court: Supreme Judicial Court of Massachusetts

Page 780

125 N.E.2d 780

332 Mass. 508

Anthony J. PERRY v. James B. CARTER.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 7, 1955.

Decided April 7, 1955.

James A. Vitelli, Provincetown, George F. Himmel, Boston, for plaintiff.

S. Osborn Ball, Provincetown, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

WILKINS, Justice.

In this action of tort there are two counts, count 1 alleging loss of consortium and alienation of the affections of the plaintiff's wife and count 2 alleging criminal conversation, loss of consortium, and alienation of her affections. There was a verdict for the plaintiff on each count. The defendant's exceptions raise questions relating to his motions for a directed verdict, to the denial of certain of his requests for instructions, to rulings on evidence, and to the denial of a motion for a new trial.

1. The defendant excepted to the denial of his motion for a directed verdict on count 2 on the plaintiff's opening. A judge cannot be required to direct a verdict on an opening. While he may do so if satisfied that the plaintiff cannot present evidence to establish his case, Douglas v. Whittaker, 324 Mass. 398, 399-400, 86 N.E.2d 916, the judge likewise in his discretion, before passing on the question, may prefer to have the plaintiff's case, or the whole case, presented on actual evidence rather than to rule on a statement of counsel which may not represent what the actual evidence will be. Hey v. Prime, 197 Mass. 474, 475, 84 N.E. 141, 17 L.R.A.,N.S., 570; Meeney v. Doyle, 276 Mass. 218, 221, 177 N.E. 6.

2. At the close of the evidence the defendant presented a motion for a directed verdict on each count which the judge denied, and the defendant excepted. Some of the facts the jury could have found are these. The plaintiff married Mary Fullerton in 1940, and they lived together in Provincetown without unusual incident until the middle of 1949. Their relations were affectionate, and she kept the house. There were no children. In May, 1949, Mary went to work at first as a cleaning woman and then as a cook for the defendant, who was the proprietor of a twenty-bedroom guest house in Provincetown. About three weeks thereafter her attitude toward the plaintiff changed. She became cold and refused sexual relations. He saw her in the defendant's Cadillac automobile. The defendant used to drive her to a beauty shop or the stores now and then. In July the plaintiff tried to commit suicide by inhaling gas. On September 28, 1949, Rita Perry, the plaintiff's sister-in-law, was going to Boston by bus with her young child and with Mary. She stopped at the defendant's house. Mary went into the defendant's bedroom without knocking, and came out with the suggestion that they all go in the defendant's Cadillac automobile. On the trip the defendant and Mary sat close together on the large front seat. At one point Mary appeared to be ill, and the defendant put his arm around her shoulder and said, 'What's the matter, Honey?' and 'Don't you feel well?' After picking up the defendant's son George in Mattapan they went to a store which the defendant and Mary entered together. There Mary bought maternity dresses which the defendant paid for. On this occasion Mary emerged with bundles; she showed a calfskin handbag, saying that the plaintiff could not afford something like that; there was jewelry. About October 1 the plaintiff told the defendant to stay away from Mary and not break up his home. He invited Mary to Maine, which was her parents' home, for their usual trip, but she would not go. On October 3, 1949, Mary permanently left the plaintiff, and went to live in the defendant's house. On the same day she filed a petition for separate support, alleging that she was living apart from the plaintiff for justifiable cause. Mary had become pregnant in June, but the plaintiff did not learn of it until October, while Mary was living at the defendant's house, by reason of receiving a doctor's bill. He consulted a physician and began to doubt the paternity of the child. On October 10, 1949, the plaintiff brought the present action. On January 6, 1950, the defendant took his son Robert and Mary to Southern Pines, North Carolina, to spend the winter and knew that she was pregnant. In that same month, his wife, who was a second wife he had married in 1947, sued him for divorce in Florida, mentioning Mary in her allegations. On March 23, 1950, a daughter was born to Mary in Southern Pines. In April the defendant, Robert, and Mary returned to Provincetown. On February 10, 1950, the plaintiff filed a libel for divorce against Mary on the ground of cruel and abusive treatment. On July 11, 1950, the libel and Mary's petition for separate support were tried together. The libel was dismissed, but Mary's petition was granted and the plaintiff was ordered to contribute to her support and that of the child. In May, 1951, Mary, who was then in Provincetown, again became pregnant, and in October the defendant, Robert, and Mary went to St. Petersburg, Florida, for the winter, and there on February 6, 1952, Mary gave birth to a son. She was in the hospital as 'Mrs. James B. Carter' with the defendant's permission. On the birth record her name appeared as 'Mary Fullerton Carter,' the child's name as 'George Hugh Carter,' and the name of the defendant, 'James B. Carter,' as father. The defendant paid the hospital bills for the birth of both children. The defendant's son, George, died the previous August. The jury did not have to accept the testimony of Mary that George was the father of her son. At the time of the trial, in November, 1952, Mary was still living in the defendant's home.

There was, in our opinion, evidence to warrant a finding that the defendant deprived the plaintiff of the consortium of his wife, as well as a finding of criminal conversation prior to the date of the writ. While the facts of no other case are precisely the same, pertinent authorities are Webber v. Benbow, 211 Mass. 366, 97 N.E. 758; Gahagan v. Church, 239 Mass. 558, 132 N.E. 357; Bradstreet v. Wallace, 254 Mass. 509, 150 N.E. 405; Labrie v. Midwood, 273 Mass. 578, 174 N.E. 214, and Georgacopoulos v. Katralis, 318 Mass. 34, 60 N.E.2d 10.

3. The defendant urges that the birth of the second child in February, 1952, which must have been conceived about May, 1951, was too remote as matter of law to be admissible as evidence of an adulterous relation between the plaintiff's wife and the defendant before October 10, 1949, the date of the writ. We think, however, that the judge could in his discretion leave the question to the jury. As was said in Beers v. Jackman, 103 Mass. 192, 194, 'The only limit to this description of evidence is, that it must be sufficiently near in point of time, and sufficiently significant in character, to afford an inference of the moral condition to be proved. And this limit must be fixed to a great...