Leavitt v. Maynes

• Decision Date: 23 October 1917
• Citation: 228 Mass. 350
• Parties: E. A. LEAVITT v. ROBERT S. MAYNES. LIDA K. RICHARDSON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 350

E. A. LEAVITT v. ROBERT S. MAYNES. LIDA K. RICHARDSON v. SAME.

Supreme Judicial Court of Massachusetts, Worcester.

October 23, 1917

October 2 1917.

Present: RUGG, C J., BRALEY, DE COURCY, & PIERCE, JJ.

Evidence, Of handwriting, To impeach witness, Admissible for limited purpose, Admissions. Practice, Civil, Exceptions. Letter.

In an action of contract by a physician for compensation for services rendered to the defendant's wife, the defence relied upon was that the defendant was living apart from his wife for justifiable cause consisting of her cruel and abusive treatment of him, and there was evidence of such treatment. To controvert this the plaintiff called the defendant's wife as a witness, who testified that she found in the mail box at her home two letters addressed to her husband which she opened and showed to him, that he took them, "looked at them and just smiled," would not read them and threw them on the table, and that the witness took them up. The letters were of an incriminating character. The defendant testified that he never had seen them before they were shown to him by his wife, that he knew nothing about them and that they did not come into his possession.

The defendant called as a witness a woman whom the defendant's wife had named as having been suspected by her of improper relations with her husband. This woman testified that she did not write the letters, that she never had seen them and did not recognize the handwriting. At the request of the plaintiff's attorney she then wrote on a piece of paper the defendant's address and some further words taken from the letters.

These specimens of handwriting were admitted in evidence without objection. The plaintiff then offered the two letters in evidence, and the judge admitted them, subject to a general exception by the defendant. Held, that the letters were admitted rightly for the purpose of comparison of handwriting to identify the writer of the letters, and also for the purpose of contradicting the testimony of the woman witness that she did not write the letters and never had seen them.

In the same case it also was held, that the contents of the letters were not admissible to show any tacit admission on the part of the defendant of the truth of the statements contained in them there being no evidence of any act of the defendant that brought about the sending of the letters and he having testified that he did not know of them and would not read them, so that the letters, however clearly the writer of them might be identified, would not warrant in themselves any inference against the defendant.

In the same case it was held, that, the defendant not having asked the judge to restrict the effect of the letters to the identity of the handwriting and the impeachment of the witness, his general exception to their admission in evidence could not be sustained, as they were admissible for the purpose of such impeachment by contradiction.

TWO ACTIONS OF CONTRACT, against the same defendant, each on an account annexed, the first by a physician for $30 and the second by a nurse for $40.56, for services rendered to the wife of the defendant for a period of a few weeks before May 1, 1915. Writs in the Central District Court of Worcester dated respectively October 8, 1915, and June 22, 1915.

On appeal to the Superior Court the cases were tried together before White, J. The evidence is described in the opinion. The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $32.14 and in the second case in the sum of $44.35. The defendant alleged exceptions to the admission in evidence of two letters, which the plaintiff asserted were written by Mrs. Mason, mentioned in the opinion.

The cases were submitted on briefs.

F. B. Hall & E.

L. Anderson, for the defendant.

F. W. Morrison & H.

Davenport, for the plaintiffs.

PIERCE, J. These were two independent actions of contract to recover on accounts annexed, in the case of the plaintiff Leavitt for services as physician and in the case of the plaintiff Richardson for services as nurse, which services were rendered to the wife of the defendant for a period between December, 1914, and September, 1915.

The defendant denied that he was liable for the two accounts declared on by the plaintiffs, because he was living apart from his wife for justifiable cause, to wit: her cruel and abusive treatment. There was testimony by the defendant and various witnesses in his behalf, that Mrs. Maynes was guilty of certain acts of cruel and abusive treatment and threats to poison and shoot the defendant Maynes, and also to kill his three children by a former wife. There was testimony in behalf of the plaintiffs, who called as a...