Webber v. Benbow

• Decision Date: 01 March 1912
• Citation: 211 Mass. 366,97 N.E. 758
• Parties: WEBBER v. BENBOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 366

97 N.E. 758

WEBBER v. BENBOW.

Supreme Judicial Court of Massachusetts, Norfolk.

March 1, 1912

COUNSEL

George Granville Darling, for plaintiff.

Harvey H. Pratt, for defendant.

OPINION

HAMMOND J.

The plaintiff's declaration is as follows: 'And now comes the plaintiff in the above-entitled action and for declaration says that the defendant contriving and wrongfully intending to injure the plaintiff, and to deprive her of the comfort, society, aid, assistance and support of George H Webber, the husband of the plaintiff, and to alienate and destroy his affection for her, unlawfully and unjustly gained the affections of her said husband, and persuaded, procured and enticed her said husband to leave the home of the plaintiff and to continue absent from the same, by means of which persuasion and enticement he did continue absent for a long period of time and up to the bringing of this suit whereby the plaintiff lost the comfort, society, aid assistance and support of her husband and his affection for the plaintiff was wholly alienated and destroyed. All to her great damage as she saith in her writ.'

'In this commonwealth, alienation of affections alone is not a substantive cause of action, but is merely an aggravation of damages, for the loss of consortium,' says Lathrop, J in Neville v. Gile, 174 Mass. 305, 306, 54 N.E. 841, citing Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Evans v. O'Connor, 174 Mass. 287, 54 N.E. 557, 75 Am. St. Rep. 316. See, also, Lellis v. Lambert, 24 Ont. App. 653. Relying upon this rule the defendant insists that this declaration, like that in Neville v. Gile, alleges as the substantial cause of action alienation of affections. This position is untenable. The declaration is in the usual form for loss of consortium, and clearly sets out that loss as the cause of action. An examination of the original papers in the case of Hadley v. Heywood, 121 Mass. 236, discloses the fact that the form of the second count in that case is, mutatis mutandis, identical with the declaration in the present case except that this declaration is strengthened by the addition of the word 'support' after 'assistance.' And this court had said that in the second count in Hadley v. Heywood 'loss of consortium was properly charged.' Neville v. Gile, ubi supra. See also in addition to cases above cited, Tasker v. Stanley, 153 Mass. 148, 26 N.E. 417, 10 L. R. A. 468, and Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605, 6 Ann. Cas. 658, for a...