Sherry v. Moore
Decision Date | 05 December 1928 |
Citation | 265 Mass. 189,163 N.E. 906 |
Parties | SHERRY v. MOORE. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Keating, Judge.
Action by Charles E. Sherry against Lester F. Moore. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.
J. J. Shaughnessy, of Marlboro, for plaintiff.
C. W. Rowley, of Boston, for defendant.
This is an action of tort, begun November 20, 1922, for alienation of the affections of the plaintiff's wife. The verdict was for the plaintiff.
The plaintiff introduced in evidence a divorce libel filed by his wife July 17, 1922, in which she charged him with cruel and abusive treatment and nonsupport. The defendant then put in the answer to that libel signed by the plaintiff and filed January 25, 1923, alleging, among other things, that the libelant had been unfaithful to her marriage vows and at divers times between June, 1920, and January 25, 1923, had committed adultery with men whose names were unknown to him. The plaintiff then introduced, subject to the defendant's exception, the writing on the back of the answer in the following words:
The record did not disclose when the waiver was indorsed on the answer, although the plaintiff testified that he thought it was in May, 1925. When this testimony was introduced the judge said in substance that this waiver as well as the answer to the divorce libel had been admitted only to enable the jury to consider what the state of mind of the libelee in the divorce proceedings was and for no other purpose, and that if the answer or the evidence tending to show waiver of a part of that answer in any way contradicts the plaintiff it would be admissible for that purpose also. This answer, although filed after the action was begun, related in part to an earlier period and was admissible in evidence. Sherry v. Moore, 258 Mass. 420, 424.155 N. E. 441. The waiver was a part of the answer. The ruling admitting the waiver could not have prejudiced the defendant. The plaintiff later testified that he knew of no improper relations between his wife and the defendant, and the judge ruled, at the defendant's request, that there was no sufficient proof of adultery.
There was no error in permitting the witness to state that his reason for not supporting his wife during a period after the action was begun was because she would not leave Moore. The defendant had previously brought out the fact that the plaintiff had contributed to the support of his wife and children by order of the court after the libel for divorce was filed and down to May, 1923, when the order was revoked. One of the issues in the case was whether the defendant had wrongfully kept the plaintiff's wife away from him. Evidence as to the relations of the parties, including the husband's failure to support his wife, even after the action was begun, and his reason therefor, was not immaterial. The plaintiff might be permitted to show that the wrong of which he complained continued while the action was pending and his reason for not supporting his wife could be found to...
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