Kaye v. Newhall

• Decision Date: 26 June 1969
• Citation: 249 N.E.2d 583,356 Mass. 300
• Parties: Edward J. KAYE v. Cheever NEWHALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 583

249 N.E.2d 583

356 Mass. 300

Edward J. KAYE v. Cheever NEWHALL.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 6, 1969.

Decided June 26, 1969.

Donald N. Sweeney, Boston (Samuel Hoar, Jr., Boston, with him) for defendant.

Bernard A. Dwork, Boston (Enid M. Starr, Boston, with him) for plaintiff.

Jacob M. Atwood, Joel Z. Eigerman and Harold M. Brown, Boston, for Emile de Antonio, amicus curiae.

Harold Rosenwald, Boston, and Richard H. Field, Cambridge, for Arthur K. Solomon, amicus curiae.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

The declaration in this action of tort contained three counts, one for loss of consortium and another for criminal conversation. The third count was waived at the trial. The jury returned verdicts for the plaintiff on each of the remaining counts in the amount of $45,000. The case is here on the defendant's bill of exceptions.

We summarize the material evidence.

The plaintiff was the husband of one Lynn Kaye (Mrs. Kaye). Despite differing social interests, their marriage was 'on the whole * * * a happly one.' Mrs. Kaye had, however, '(f)or a number of years * * * without the plaintiff's knowledge, met men, gone out to dinner with them, and had drinks with them.' Prior to 1959, she had a 'number of jobs as a cocktail waitress.' In 1959 or 1960, she 'took a job' as a waitress at a hotel in Brookline and shortly thereafter became a cocktail waitress there. It was at this hotel that she first met the defendant who occupied a 'position of managerial responsibility' there.

In late 1960, Mrs. Kaye and the defendant were, 'at his suggestion,' sexually intimate and continued to be sexually intimate until early 1964. The also had various business relations. The defendant gave Mrs. Kaye a checkroom concession and they opened joint bank accounts. Mrs. Kaye was eventually discharged by the Brookline hotel 'because she was too close to the defendant.'

The defendant visited the plaintiff's home and they became friendly. The plaintiff loaned the defendant $25,000 in order that the defendant and Mrs. Kaye could be equal partners in a motel to be acquired in Brockton. The motel in Brockton was never purchased. Subsequently the defendant obtained an interest in a hotel in Plymouth, and Mrs. Kaye became his 'assistant manager.' She lived at the hotel in a room adjoining the defendant's bedroom. Mrs. Kaye was discharged six weeks later and returned to the plaintiff's home in Brookline. When during the summer of 1963, the defendant purchased an inn in Sandwich, Mrs. Kaye joined him there. The plaintiff visited the inn regularly and stayed overnight two or three times a week. Mrs. Kaye was sexually intimate with the plaintiff when he was at the inn and she was sexually intimate with the defendant when the plaintiff was not at the inn.

On November 3, 1963, and December 8, 1963, the plaintiff left the inn and 'returned to it stealthily in order to spy.' On the latter occasion he saw the defendant enter Mrs. Kaye's room and he 'heard sounds of love making.' When he arrived home he 'made notes of everything he had witnessed during the night. * * * The following weekend he returned to the (i)nn and acted as though nothing had happened.'

At Christmas, Mrs. Kaye spent a week with the plaintiff in Brookline. They went to the inn for a New Year's Eve party. During the party, the plaintiff and the defendant had a disagreement concerning the financial books of the inn. The plaintiff spent the night with Mrs. Kaye and left the inn the next day. When he returned the following weekend in order to take Mrs. Kaye home, she was not at the inn. She had moved to a motel and later went to Florida for five or six weeks.

On her return to Massachusetts, Mrs. Kaye obtained a room in a private home located next to the inn. She filed a divorce libel and a decree nisi awarding her a divorce was entered on November 24, 1964. She then moved back to the inn. In the spring of 1965, she again went to Florida for five or six weeks. While there she learned that the defendant had married another woman. Mrs. Kaye returned to Massachusetts and, after two weeks in a motel, 'returned to live in the plaintiff's house * * * where she still resides, paying the plaintiff $10 a week rent.'

1. The defendants excepted to the testimony of the plaintiff that prior to December, 1963, or early January, 1964, he had no potency problem, but that since then he 'has been unable to have and has not had an erection' and 'has left absolutely no interest in women.' The defendant also excepted to the refusal of the judge to instruct the jury 'to disregard all evidence of the alleged impotency of the plaintiff.' The judge instructed the jury to consider, in assessing damages, how the interruption of his marital relationship had affected the plaintiff physically.

The plaintiff's testimony was the only evidence of impotency. He was hospitalized for a week in February, 1964, and during that time he was treated by a neurosurgeon and a psychiatrist. Later he visited a psychiatrist three times as an outpatient. However, he produced no medical evidence to substantiate his claim of impotency or to show that the alleged impotency was caused by the defendant's conduct. 'The issue involved matters of a highly technical nature' and to submit it to the jury solely on the testimony of the plaintiff 'invited them to indulge in sheer speculation.' Ramsland v. Shaw, 341 Mass. 56, 61, 166 N.E.2d 894, 899. Medical evidence of the plaintiff's impotency was required. We are of opinion that it was prejudicial error to admit the plaintiff's testimony on impotency and to refuse to instruct the jury to disregard it.

2. The defendant excepted to the refusal of the judge to instruct the jury as he had requested that '(i)f you find that the plaintiff and * * * (Mrs. Kaye) have conspired together in order to recover damages from the defendant in this action, then you must find for the defendant.'

There was ample evidence on which the jury could have found that the plaintiff was aware of the relationship between Mrs. Kaye and the defendant prior to December 8, 1963, when he observed the defendant entering Mrs. Kaye's room and 'heard sounds of love making.' There was also ample evidence on which the jury could have found that the plaintiff not only did nothing to discourage this relationship, but actually encouraged it. He loaned the defendant a substantial sum of money and permitted Mrs. Kaye to leave home and live in the hotel and inn at which she worked with the defendant. Following the termination of her relationship with the defendant, Mrs. Kaye returned to the plaintiff's home and was residing there at the time of the trial. We think the jury would have been warranted in concluding that the plaintiff and Mrs. Kaye had 'conspired together * * * to recover damages' and, therefore, the defendant was entitled to have the jury instructed with regard to the legal effect of such a conspiracy. Kohlhoss v. Mobley, 102 Md. 199, 62 A. 236; Milewski v. Kurtz, 77 N.J.L. 48 Vroom, 132, 71 A. 107; Comte v. Blessing, 381 S.W.2d 780 (Mo.).

3. It was also error for the judge to permit both the plaintiff and Mrs. Kaye to testify as to the content and substance of private conversations they had while they were husband and wife. The rule established by G.L. c. 233, § 20, as amended through St.1963, c. 765, § 3, is a rule of disqualification, not of privilege, and the testimony was inadmissible even if both spouses wish the evidence to be received. Commonwealth v. Cronin, 185 Mass. 96, 69 N.E. 1065; Sherry v. Moore, ...