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The plaintiff and the defendant were married in this Commonwealth on August 6, , and thereafter lived together here as husband and wife. On November 9, , while riding as a "gratuitous passenger" in an automobile owned and operated by the defendant, the plaintiff was injured when the automobile, due to the gross negligence of the defendant, ran into a tree. The plaintiff was in the exercise of due care. The accident occurred on a public way in this Commonwealth and the defendant's automobile was registered in accordance with the laws thereof.

On June 28, , upon the petition of the plaintiff to annul the marriage because of the defendant's fraud, the Probate Court decreed that the marriage was "null and void. The material portions of the decree are as follows: "On the libel of Muriel Gladys Thomas, of Sudbury, in said county of Middlesex, representing that she and Frederick A. Thomas, now of Lexington, in said county, were joined in marriage lawfully solemnized at Boston, in the county of Suffolk, on August 6, ; and that they last lived together in this Commonwealth at said Sudbury; that she now doubts the validity of said marriage for the reason that at the time of said marriage said libellee fraudulently concealed from her the fact that he was afflicted with a contagious disease, thereby practicing a fraud upon her: and praying that said marriage between the said libellant and libellee be annulled and declared void: Said Frederick A.

Thomas having had due notice of said libel, objection being made, and after hearing, it appearing to the court that said libellant entered into said marriage in good faith but that said libellee practiced a fraud upon her: It is decreed that said marriage between the said libellant and libellee be and the same hereby is declared to be null and void. The foregoing facts were submitted to a judge of the Superior Court upon a case stated in which it was agreed that no inferences should be drawn.

See G. The judge at the request of the parties reported the case to this court without decision G. Boston Elevated Railway, Mass. The question for decision is whether a wife after the marriage has been annulled can maintain an action against her former husband for a tort committed during coverture.

The question is one of first impression in this Commonwealth. Indeed no case in any other jurisdiction has been brought to our attention, and we have found none, in which this question has been presented. That no cause of action arises in favor of either husband or wife for a tort committed by the other during coverture is too well settled to require citation of authority.

Recovery is denied in such a case not merely because of the disability of one spouse to sue the other during coverture, but for the more fundamental reason that because of the marital relationship no cause of action ever came into existence. That this is so is revealed by the fact that it has uniformly been held that even after divorce no action can be maintained by either spouse for a tort committed by the other during coverture.

Phillips v. Barnet, 1 Q. Abbott v. Abbott, 67 Maine, Bandfield v. Bandfield, Mich.


Strom v. Strom, 98 Minn. Lillienkamp v. Rippetoe, Tenn. Schultz v. Christopher, 65 Wn. There is nothing in our statutes enlarging the rights of married women that can be construed as altering this rule.

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See Lubowitz v. Taines, Mass.

Luster, Mass. Recognizing the common law rule and the fact that it has not been changed by statute, the plaintiff argues that the decree of nullity "effaced the marriage between the plaintiff and defendant ab initio, and, therefore, at the time of the accident the relationship of husband and wife did not exist. There are, to be sure, instances where one spouse may have a cause of action against the other but cannot enforce it because of the rule prohibiting, with certain exceptions, legal proceedings between husband and wife.

Thus in Giles v. Giles, Mass. But after the parties had been divorced it was held that the suit could be maintained. Giles v. The right to sue was merely suspended during coverture.


In Charney v. Charney, Mass. Compare Whitney v. Whitney, Mass. Mertz, N. In other jurisdictions it has usually been held that statutes removing the common law disabilities of the wife do not permit her to maintain an action against her husband for a tort committed during coverture. Libby v. Berry, 74 Maine, Longendyke v.


Longendyke, 44 Barb. Thompson v. Thompson, U. But some statutes have been construed to permit actions in such cases. Johnson v. Johnson, Ala. Brown v. Brown, 88 Conn. Gilman v. Gilman, 78 N. See note in 38 Harv. General Laws Ter. Upon proof of the validity or nullity of the marriage, it shall be affirmed or declared void by a decree of the court.

In other words, the decree of annulment makes the marriage void ab initio. Clerke v.

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Menzies, 2 Ch. Dodworth v. Dale, 2 K.

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Mason v. Mason, N. Millar v. Millar, Cal. McDonald v. McDonald, 6 Cal. Griffin v. Griffin, Ga. Henneger v. Lomas, Ind. Ridgely v. Ridgely, 79 Md. Steerman v. Snow, 94 N. Following that testimony Detective McKale was asked by the prosecutor:. Now, in your capacity as a detective with the Vice Squad for almost ten years, do you have an opinion as to the presence of these this shotgun and this pistol in the house in conjunction with the other materials and other property that you found there?

Following an objection, later placed upon the record as based upon lack of foundation, materiality, and relevancy, the detective answered:. Well, on numerous occasions when executing search warrants for people involved in the distribution of controlled substances we have encountered guns and gunfire.

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Another detective, Ronald Kuehn, testified to a conversation he had with the defendant at the police station several days after the search. The admissibility of the defendant's statements were the subject of a Goodchild[1] hearing at which Kuehn testified that on February 28, , he had a ten- to fifteen-minute conversation with the defendant during which the defendant was advised of his constitutional rights and then asked some questions about his employment and educational background.

The defendant answered these questions. Detective Kuehn stated, "then I asked him where he lived, at which time he stated , then he stopped and stated he was not to answer this question on advice of his attorney. The trial court ruled that the partial statement of the defendant made to Detective Kuehn was made voluntarily and was admissible but precluded any testimony relating to the defendant's refusal to answer on the advice of his attorney.

Thus at trial Detective Kuehn testified, "I asked him his home address at which time he stated , and stopped.

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Certain personal papers and belongings of the defendant, many of which contained the defendant's name and address or otherwise linked him to the premises, were also admitted at trial to which the defendant objected as beyond the scope of the search warrant and illegally seized. The trial court overruled the objection, and the defendant now contends that the admission of these items was error.

In an offer of proof made outside the presence of the jury, Hill testified on direct examination that during the month of February, , she was a heroin addict and that she had heroin on the premises for her personal use. On cross-examination by the prosecutor, Hill was asked whether on the date of the search she had any heroin or marijuana on the premises.

Hill exercised her right under the fifth amendment and declined to answer. That same response was given each time the prosecution asked any question which attempted to establish whether the particular drugs found on the premises during the search belonged to Hill.

Hill did testify, however, that certain other drug paraphernalia found on the premises was hers rather than the defendant's.