W v. W , 141 Mass. 495 ( 1886 )

Holmes, J.

The single question reserved is whether the practice of masturbation by a husband in the presence of his wife, but without compelling her to remain present, which injures her health by its effect upon her feelings, is “ cruel and abusive treatment ” within the Pub. Sts. c. 146, § 1.

We will assume, although it is not found as a fact, that the libellee knew how his conduct worked upon his wife, and we fully agree that, in general, foresight of a consequence of one’s act has the same effect upon liability for producing it as intent to produce that consequence. Commonwealth v. Pierce, 138 Mass. 165, 179. Goodnow v. Shattuck, 136 Mass. 223, 225.

But the actual intent and purpose with which an act is done may be of importance when the question is not one of liability, but of dissolving the marriage tie. Certainly they may be made so by statute. The words “ cruel and abusive treatment ” seem to import on their face conduct directed towards the other party, and with a malevolent motive. Without deciding that a case could not be imagined which would fall within the meaning of the words without such a motive, it is enough to say that purely self-regarding conduct, not forced upon even the knowledge of the wife otherwise than by the usual intimacy of matrimony, does not constitute the offence, merely because its folly, its disgusting character, or its wickedness disturbs her nerves or conscience, and thus affects her health.

J. F. Wakefield, for the libellant. No counsel appeared for the libellee.

Libel dismissed.