Sherry v. Moore

• Decision Date: 04 March 1927
• Citation: 258 Mass. 420,155 N.E. 441
• Parties: SHERRY v. MOORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 420

155 N.E. 441

SHERRY

v.MOORE.

Supreme Judicial Court of Massachusetts, Middlesex.

March 4, 1927.

Exceptions from Superior Court, Middlesex County; Charles H. Donahue, Judge.

Action of tort for wrongful deprivation of consortium by Charles E. Sherry against Lester F. Moore. On defendant's exceptions after verdict for plaintiff. Exceptions sustained.

Testimony of the witness Briggs contained this question and answer:

‘Q. After you moved the furniture? Now, did you say to Mr. Sherry then that Mr. Moore told you to move the furniture up to his house, and that if Mr. Sherry made any trouble for you, that he would stand back of you, because he had plenty of money, or words to that effect? A. Yes, sir; that is what he said.’

‘Q. Sherry said? A. Yes, sir.’

‘Q. Did Mr. Moore make that statement to you before you moved the furniture?’

To the admission of this evidence the defendant objected. The court overruled the defendant's objection and admitted the evidence, and the defendant duly excepted.

Witness answered:

‘Yes, sir.’

Plaintiff's letter of June 1, 1922, referred to in the opinion, is as follows:

‘The Camp, June 11, 1922.

‘My Dear Annie: You told me to-day I was a fool, and I guess maybe I am. At any rate, we will let it go at that. Am staying here tonight to go up on the train to work in the morning, and I suppose that is foolish when I had a better place to stay, and didn't.

‘I know you don't care about my writing, but there are things I want to say, but can't, when I'm talking to you. You accused me to-day of saying things to people to start talk. That isn't so, dear, and deep down in your heart you know it isn't so. You nor any one else ever heard me say an indecent thing about a girl in my life, and God knows I am not going to start on you. What I said to J. R. P. was this: He said, ‘Are you going to work in Stoneham all summer?’ I said, ‘No; I expect to go to work for Needham.’ He said, ‘I should think you would want to get Annie out of up there. Why don't you move to the camp this summer?’ Then I told him that I was going to fix over the camp as I could get the time and money, and it wouldn't be in shape to live in, but I was going to try to finish a house in Littleton, but I didn't know as I could. I wanted to give him to understand that we would move when we could find a decent place to move to. If you told him anything different, I am truly sorry, because I know that he was just fishing.

‘Now, dear, you accused my folks of putting me up to taking the kiddies, and you are wrong again. The only ones I have talked with about our trouble are my mother and Catherine, and I said very little to my mother. She asked me one day what the trouble was. I told her I guessed it was me. I told her we were planning for you and the kids to go down to Maine as soon as we got money enough. She thought it was quite a task for you to take all the kids and said if we wanted her to, she would take Junior and Pat and do the best she could for them while you were gone. That is all she ever said about it, and I believe she meant to help you by doing it. I don't want to ever separate you and the kiddies, but God knows I hate to give them up forever. That is all my mother ever said about the kids; and as for Catherine, well, she would do more for you to-day than most of the people you could name, and she never says a word. What I said to Catherine I said because she is the best friend I've got in the world and she understands how I feel, and she would never suggest anything that might make trouble. What I hear, I hear outside, and not at home. I'll tell you frankly I don't hear much, only now and then somebody will try to see how I feel about somebody. You know who I mean.

‘You say I wasn't kicked out. No; I wasn't, but he wanted me to milk night and morning about ten cows. He didn't say ten, but he said he figured it five cents a cow. He figured board a dollar a day. I told him I couldn't bother to milk nights, as I had work I wanted to do; and he said if I couldn't be there night and morning I'd have to find some other place. Now those are the words he used, dear, and when anybody asks me why I left, I tell them, and you and him saying it is a lie don't make it one. I've worked for me a good many hours for a few beans and I'm done. Now that is all I've got to say, dear, about those things. But I want to ask you about the strawberries. Wherever you are next winter you will want some preserves, and I want you to have some, and you remember that we always did have some and no thanks to any one but ourselves. If you don't want to put them up, just say so. I can do it, and maybe I'd better do it then there will be no doubt as to whose sugar goes into them.

‘I'm truly sorry I couldn't give you more money to-day but I must pay my K. of C. or you and the kids will be the losers.

‘I sure meant nothing wrong last night, dear, and don't see why you should put a wrong meaning to everything I say. That I love Richard as I do should be proof of that.

‘Goodnight, dear, and please try to be pleasant next Saturday (slightly rubbed out) * * * for you and I know it is for me.

‘Forever yours,

Hub.'

J. J. Shaughnessy, of Marlboro, for plaintiff.

C. W. Rowley, of Boston, for defendant.

WAIT, J.

The writ in this action was dated November 20, 1922. The declaration was in three counts for wrongful deprivation of consortium. At the trial, the judge directed a verdict for the defendant upon the third count, which charged deprivation because of adultery, and, after the plaintiff had elected to proceed only upon his first count, refused to order a similar verdict on that count. The case is before us upon the defendant's exceptions to this refusal, and to seventeen rulings on the admission or exclusion of evidence.

There is no dispute that in February, 1920, the plaintiff and his wife, who, so far as appears, had had no previous relations with the defendant, went to live at the defendant's house in order that the wife might do the housework and care for his two infant children, whose mother had died two days before. All agreed that as compensation the wife was to have the shelter of the house and food for herself and her three children, while the husband was to do chores on the farm in return for his shelter and food. She remained and performed the services agreed upon, after her husband, in early 1922 and for reasons of his own apart from her behavior, had left the house. She preferred so to remain and serve after, later still, the husband requested her to go elsewhere; and, in July, 1922, she sought a divorce from the plaintiff. Whether her refusal to join her husband and to go away from the house of the defendant was due to wrongful persuasion of the defendant, or to her independent determination upon her course of action, was the...