Cutter v. Cooper

• Decision Date: 08 January 1920
• Citation: 234 Mass. 307,125 N.E. 634
• Parties: CUTTER v. COOPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 307

125 N.E. 634

CUTTER

v.COOPER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1920.

Exceptions form Superior Court, Suffolk County; William Cushing Wait, Judge.

Action of tort by Charles T. Cutter against Almon Cooper, for alienation of the affections of plaintiff's wife, and for criminal conversation, wherein there was an order that plaintiff need not answer certain interrogatories, and defendant excepts. Exceptions sustained.

Jasper N. Johnson and Michael F. Shaw, both of Boston, for plaintiff.

Felix Rackemann and Ralph W. Dunbar, both of Boston, for defendant.

RUGG, C. J.

This case comes before us rightly on exceptions to the refusal by a judge of the superior court to order interrogatories to be answered. Brooks v. Shaw, 197 Mass. 376, 84 N. E. 110. The interrogatories were filed pursuant to St. 1913, c. 815. It is provided in section 1 of that act that--

‘Any party, after the entry of an action at law or the filing of a bill in equity, may interrogate an adverse party for the discovery of facts and documents admissible in evidence at the trial of the case.’

By section 9 of the act sections 57 to 67, both inclusive, of R. L. c. 173, are repealed. The practice respecting interrogatories thus has been greatly broadened. There were important restrictions upon the right under earlier statutes. These are pointed out in Wilson v. Webber, 2 Gray, 558, and Grebenstein v. Stone & Webster Engineering Co., 205 Mass. 431, 91 N. E. 411, and cases collected at 439, and need not be repeated. Under St. 1913, c. 815, however, the scope of the subjects about which interrogatories may be asked is as broad as the field of inquiry when the person interrogated is called as a witness to testify orally in the actual trial. Looney v. Saltonstall, 212 Mass. 69, 74, 98 N. E. 698. The only qualification of this general statement is in section 3 of the act, and relates simply to disclosure of names of witnesses, as to which it is conceivable that in proper instances a party might be questioned if he became a witness at a trial. It is provided by section 3 of the act that--

‘No party interrogated shall be obliged to answer a question or produce a document which would tend to criminate him or to disclose his title to any property the title whereof is not material to an issue in the proceeding in the course of which he is interrogated, nor to disclose the names of witnesses,’ with exceptions not here material.

It is elementary that a party called as a witness in a civil cause cannot be compelled to incriminate himself (Evans v. O'Connor, 174 Mass. 287, 290, 291, 54 N. E. 557,75 Am. St. Rep. 316), nor to give testimony not material to the issues on trial. The statute thus by express terms makes applicable to interrogatories fundamental rules applicable to the presentation of evidence. The words of section 3, that in the event of refusal to answer ‘the court shall, upon motion, order the party interrogated to answer such of the interrogatories as it finds proper,’ do not vest in the judge an untrammeled discretion upon the subject. They impose the duty to act according to sound principles of law, having regard to all pertinent factors and general rules of evidence.

The circumstances that there has been a trial at which the facts sought by the interrogatories might have been the subject of evidence is by itself no sufficient reason why a party may not have reviewed the decision of the judge in refusing to order answers to be made. It was said by Chief Justice Gray in Baker v. Carpenter, 127 Mass. 226, at page 228, ‘that the party, if he seasonably files proper interrogatories, is entitled to be informed of such facts in advance, so as to assist him in preparing for trial; that any error of the court, in refusing to order a disclosure of such facts, is not cured by the introduction of, or opportunity to introduce, testimony on the same point at the trial.’ Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417, 421, 50 N. E. 1031. Whenever, therefore, the rulings of the judge have resulted in a denial of the right to secure disclosure of facts having a substantial relation to the issues involved, there is good ground for exception unless it appears that the substantial rights of the excepting party have not been injuriously affected.

The principle of trial evidence, to the effect that ordinarily no exception will be sustained to the refusal to allow a question to be put unless the substance of the answer expected in reply is stated to the court, does not apply to interrogatories. Where questions are asked of a witness at the trial, if there has been proper preparation counsel usually has more or less well grounded reason for anticipating the testimony to be given. Interrogatories commonly are propounded to an adversary party for the purpose of ascertaining material facts in advance of the trial. The interrogator may be in utter ignorance of the information likely to be disclosed, and be unable to make any offer of proof. His right to interrogate does not depend primarily upon the question whether the answers will help or harm him in the ultimate decision of the case. On the other hand, exceptions ought not to be sustained unless there is solid foundation for belief that substantial injury has resulted. Interrogatories should not be suffered to become a training field for the saving of exceptions possessing only a theoretical merit having no relation to the practical administration of justice.

The plaintiff's declaration alleged in substance in the first count that the plaintiff's wife was persuaded to leave him through the intentionally unlawful influence of the defendant, and in the second count charged the defendant with criminal conversation with the plaintiff's wife. No date was alleged in the first count for the exercise of the acts there set forth. The defendant's answer was a general denial and the statute of limitation.

Under these pleadings issues were raised concerning the fact and the time and the duration of leaving the plaintiff by his wife, and all the contributing causes flowing either from the conduct of the plaintiff or of the defendant and the measure of damage resulting to the plaintiff from those causes for which the defendant was responsible. There was involved the actual state of the conjugal affections of the wife, because if a feeling of indifference or repugnance on her part toward the plaintiff preceded and accompanied the defendant's relations with her, there could be little or no recovery under the first count for simple alienation of affections. Lanigan v. Lanigan, 222 Mass. 198, 200, 110 N. E. 285;Servis v. Servis, 172 N. Y. 438, 65 N. E. 270. Even under the second count, where the essential injury alleged to the husband was the defilement of the marriage bed and the invasion of his exclusive right to marital intercourse with his wife (Bigaouette v. Paulet, 134 Mass. 123, 126,45 Am. Rep. 307), the real attitude of mind of the wife toward the husband was important in its bearing on damages (Palmer v. Crook, 7 Gray, 418;Hadley v. Heywood, 121 Mass. 236).

It was not necessary for the defendant to set up special matter in his answer to raise all these issues. They were open under the general denial. Divorce rule No. 9 as to specifications of defense and the general practice upon libels for divorce as set forth in ...