Thibault v. Lalumiere

• Decision Date: 28 March 1945
• Citation: 60 N.E.2d 349,318 Mass. 72
• Parties: THIBAULT v. LALUMIERE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 72

60 N.E.2d 349

THIBAULT

v.LALUMIERE.

Supreme Judicial Court of Massachusetts, Essex.

March 28, 1945.

Action of tort by Cecile Thibault against Silver J. Lalumiere. From an order sustaining defendant's demurrer to plaintiff's declaration, the plaintiff appeals.

Demurrer sustained, and judgment for defendant.Appeal from Superior Court, Essex County; Pinanski, Judge.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

C. Ingram, of Lynn, for plaintiff.

H. F. Collins and M. E. Walch, both of Lawrence, for defendant.

RONAN, Justice.

This is an appeal from an order sustaining the defendant's demurrer to the plaintiff's declaration filed in an action of tort which was commenced on July 16, 1943. Although the declaration contains a mass of irrelevant and immaterial matters, no objection to its form was made in the Superior Court. We set forth all the allegations pertinent to any possible cause of action upon which the pleader might have intended to base a claim against the defendant. The declaration alleged that from the time she entered the employ of the defendant's firm in January, 1930, until 1943, when she finally ceased to keep company with the defendant, he planned to seduce her; that he induced her to keep company with him and to become engaged to marry him by his false representations that he loved her and that he was a single man; that she discovered in May, 1930, that he was married, and left her employment; that she re-entered the employment several times upon his promise not to molest her but that she quit on a number of occasions when he molested her; that in 1934 she left the Commonwealth; that upon her return in 1942 the defendant represented that he had secured a divorce, that he was a single man and would marry her, and that he would make a permanent home for her; that relying on these representations she went to live at the home of the defendant's mother where he lived; that she became dissatisfied with his delaying the marriage and left the said home; and that she learned in June, 1943, that he had married again in 1942 and she ceased to associate with him any longer. She alleges that as a result of the defendant's conduct she submitted to his embraces and caresses, was deprived of an opportunity to meet and marry some honorable young man, lost employment, suffered humiliation and grief, and was made ill.

The declaration sets forth no cause of action for seduction. Nothing more than an intent or a plan to seduce her is alleged. We do not intimate that, if seduction had been averred, she could recover damages. It has been held that, in order that a father may recover for the seduction of his minor daughter or a master for the seduction of a female servant, it must be shown that he lost the services of the woman on account of the seduction. The action cannot be maintained on any other basis. Dennis v. Clark, 2 Cush. 347, 349,48 Am.Dec. 671;Kennedy v. Shea, 110 Mass. 147, 150,14 Am.Rep. 584;Cook v. Bartlett, 179 Mass. 576, 579, 580, 61 N.E. 266. But it is an ancient and settled rule of the common law that the party seduced is barred by her participation in a wrong from recovering damages. Pual v. Frazier, 3 Mass. 71, 3 Am.Dec. 95; Hamilton v. Lomax, 26 Barb., N.Y., 615; Wrynn v. Downey, 27 R.I. 454, 63 A. 401, 4 L.R.A.,N.S., 615, 114 Am.St.Rep. 63,8 Ann.Cas. 912;Salchert v. Reinig, 135 Wis. 194, 115 N.W. 132. While damages for seduction may not be recovered in an independent action, they may be included in the measure of damages in an action for breach of promise of marriage. Sherman v. Rawson, 102 Mass. 395;Kelley v. Riley, 106 Mass. 339, 8 Am.Rep. 336. The plaintiff, however, cannot recover damages for seduction as an incident to an action for breach of promise of marriage if, as will presently appear, she cannot maintain such an action.

The plaintiff contends that she can recover on this declaration for an assault and battery. This contention rests upon the allegation that ‘as a result of defendant's behavior the plaintiff was caused to acquiesce in and submit to defendant's embraces and caresses.’ It is to be noted that this allegation refers to an element of damage and does not purport to set forth a substantive cause of action. In the next place, if the plaintiff knowingly consented to and participated in these manifestations of apparent affection by the defendant, her consent would bar her from complaining that conduct of this character constituted a wrong to her. Fitzgerald v. Cavin, 110 Mass. 153;O'Brien v. Cunard Steamship Co., 154 Mass. 272, 28 N.E. 266,13 L.R.A. 329;Bates v. Reynolds, 195 Mass. 549, 81 N.E. 260;Szadiwicz v. Cantor, 257 Mass. 518, 154 N.E. 251, 49 A.L.R. 958. If, as she now contends, her consent was procured by fraud of the defendant in that he did not intend to perform his promise to marry her, Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892,9 Am.St.Rep. 721;Jekshewitz v. Groswald, 265 Mass. 413, 164 N.E. 609, 62 A.L.R. 525, she could not maintain an action on account of such acts committed during a courtship where the only ground for contending that such acts constituted a wrong was his intent not to carry out his promise to marry her and so was directly attributable to the breach of contract to marry if, as will appear, a statute declares that the breach of such a contract shall not be deemed to be a legal wrong or injury.

The final contention of the plaintiff is that an action of tort for deceit is alleged in the declaration. It is hard to see how the plaintiff was deceived by any representations of the defendant, at least in the early years of their association, when it is specifically alleged that she knew in May, 1930, within five months of their acquaintance, that he was married and that their association, although alleged thereafter to be somewhat interrupted, continued until 1934 when she left the Commonwealth. Des Brisay v. Foss, 264 Mass. 102, 111, 162 N.E. 4;...