Shalit v. Shalit

• Decision Date: 29 June 1927
• Parties: SHALIT v. SHALIT.
• Court: Maine Supreme Court

138 A. 70

SHALIT

v. SHALIT.

Supreme Judicial Court of Maine.

June 29, 1927.

On Motion from Supreme Judicial Court, Cumberland County, at Law.

Action by Alice W. Shalit against Annie H. Shalit. On defendant's motion for new trial after verdict for plaintiff. New trial granted.

Argued before PHILBROOK, DUNN, DEASY, BARNES, BASSETT, and PATTANGALL, JJ.

Joseph E. F. Connolly and Harry C. Libby, both of Portland, for plaintiff.

Hinckley & Hinckley, of Portland, for defendant.

DEASY, J. The wife of Harold M. Shalit brings this suit against his mother. In her writ the plaintiff declares that the defendant did "by arts, enticements, and inducements alienate the affections of the said Harold M. Shalit from her, said plaintiff." The jury returned a verdict in favor of the plaintiff for $7,000. The case comes to this court on two motions, one general, and the other ground on newly discovered evidence.

The record is voluminous. Not to speak of depositions, letters, and documents, the oral evidence taken out before the jury fills 735 pages. Much of it is sharply conflicting. Such material facts as are unquestioned may be summarized thus:

Harold M. Shalit, of Portland, married Alice White, of Boston, on July 3, 1923. Soon after their marriage they established their home in the Marlborough apartment house at Portland, owned by the defendant. For a time the wife's relations with her husband and his mother were harmonious. The elder Mrs. Shalit treated the son's wife kindly and generously. Harold was dependent upon his mother. She paid him $50 per week. This was largely a gratuity, though he performed some service for her in looking after the apartment house. Later the family life became unpleasant. The unpleasantness seems to have culminated when Mrs. White, the plaintiff's mother, came to Portland to visit her daughter. After some troubles unnecessary to describe in detail, Harold employed an officer to order Mrs. White to leave the premises. She left and on January 3, 1924, plaintiff went back to her former home in Boston. From that time on the plaintiff lived with her parents in Massachusetts, while her husband continued to reside in Portland. On June 15, 1924, in Boston, the plaintiff gave birth to a child. The defendant provided $350 for expenses of confinement. For some period, both before and after this, the husband paid his wife an allowance of at least $25 per week. For a time the payment of this allowance was suspended. Harold says that by the suspension he hoped to induce his wife to return to Portland. At the instance of the plaintiff, or her father, Harold was indicted and arrested in Boston for nonsupport. Proceedings to compel support were also instituted in the probate courts of Maine and Massachusetts. Later the instant suit was brought against the mother. The plaintiff has always had custody of the child. Shortly after the child's birth it was given over to a Mrs. Casey to keep and care for. The husband made unsuccessful efforts to find and see it. Omitting many details, the above are the salient and undisputed facts.

Much of the other testimony is conflicting. According to the plaintiffs evidence, the six months of family life which began harmoniously and gaily later on became intolerable to her by reason of the indifference and cruelty of her husband. He assaulted her, she says, and caused not her mother alone, but herself, to be evicted. She relates many incidents, some of trivial character and others more important, tending to show that her husband was under the complete control of his mother, the defendant, and that her influence brought about the estrangement and separation.

The law applicable to this phase of the case is well settled. The burden is upon the plaintiff to show that the mother maliciously alienated the son's affections from his wife. Malice is not presumed. It must be proved, but it may be shown by proof of wrongful and unjustifiable conduct.

The mother may in good faith, influenced by maternal solicitude for her son's happiness and peace of mind, advise him in his conjugal relations. Even if it appear that the parent's advice, arguments, or persuasions caused the plaintiff to lose the consortium, i. e., the society, affection, and aid of her husband, there is no legal remedy, unless it be shown that the parent acted with hostile, wicked, or malicious intent. If loss so caused and such intent appear, an action lies. Oakman v. Belden, 94 Me. 280, 47 A. 553, 80 Am. St. Bep. 396; Wilson v. Wilson, 115 Me. 341, 98 A. 938; Multer v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L.R.A. (N. S.) 322, 9 Ann. Cas. 958; Woodhouse v. Woodhouse, 99 Vt. 91, 130 A. 758; Thomas v. Lang, 135 Wash. 675, 238 P. 626; Roberts v. Cohen, 104 Ore. 177, 206 P. 293; Porter v. Porter (Mo. App.) 258 S. W. 76; 30 C. J. 1119; 13 R. C. L. 1471.

Applying these legal principles to the facts as above summarized, we think that the verdict is not against law nor manifestly against the weight of evidence. The jury saw and heard the plaintiff and her witnesses and were not bound to disbelieve their testimony, though much of it was flatly contradicted. From the plaintiff's testimony, if believed, they were justified in returning a verdict for her. The defendant does not in her motion allege that the verdict is excessive.

Newly Discovered Evidence.

The defendant offers, relying upon it as newly discovered, the testimony of Dr. John T. Williams. The significance of the doctor's evidence appears from the following outline:

The plaintiff testified that at the time of her child's birth she was badly injured internally; that thereafter she was in a poor state of health, unable to nurse her baby, and that, by advice of her physician, she put the child out to be nursed and cared for.

Upon a new trial Dr. Williams will testify, so it appears from his deposition, that he was the plaintiffs attending physician at childbirth and saw her at frequent intervals while she was in the maternity hospital and twice afterwards; that there was nothing unusual, no complications in the case; that she was able to nurse the child; and that "the patient had taken the baby off the breast against my advice and put it out to board."

In order that newly discovered evidence may warrant a new trial these things must appear:

(1) That the new evidence is not merely cumulative. There is observable a recent tendency to qualify this requirement. See, also, R. S. c. 94, § 4, relating to petitions for review. But Dr. Williams' testimony is not cumulative.

(2) It must "seem to the court probable that on a new trial, with the additional evidence, the result would be changed." Drew v. Shannon, 105 Me. 562, 75 A. 122.

Besides that of Dr. Williams, the defendant presents as newly discovered the evidence of Julius Langsdorf. It is unnecessary to speak of this testimony further than to say that, if heard by a jury, it would probably not change the result.

But Dr. Williams' testimony, if belived, would in all likelihood affect a jury verdict, at all events, as to the amount of the verdict. It would probably change the result.

(3) That the moving party is not chargeable with want of due diligence in failing to discover the new testimony earlier and have it at the first trial.

The story of the plaintiff told on the stand first disclosed the materiality and importance of Dr. Williams' evidence. Nothing in the pleadings forewarned the defendant that it would be needed. The doctor was beyond the court's jurisdiction. After the plaintiff had given her testimony, it was apparently not practicable to produce Dr. Williams' evidence at the trial.

(4) But if material evidence be newly discovered during trial and is not presently available, a litigant must move for a postponement or continuance, if he would seek a second trial by reason of such evidence.

A party having, during a trial, knowledge of material evidence which he is unable to produce, cannot, unless ordered by the court, have one trial without such evidence and later have another trial with it. This would be to give one of the litigants two days in court and confine the other to the traditional one day. Among many authorities thus holding, we cite the following: Garage Co. v. Powell, 97 Vt. 328, 123 A. 200; Marsh v. Surety Co., 195 Iowa, 1193, 198 N. W. 563; Peterson v. Clay (Tex. Civ. App.) 225 S. W. 1112; McCants v. Thompson, 27 Okl. 706, 115 P. 600; Clark v. Railways Co., 192 Ill. App. 358; Learned v. Transit Co., 49 Gal. App. 436, 193 P. 591; 20 R. C. L. 291.

But this principle, though well established, does not apply to the pending case. At the time of trial the defendant did not know what testimony the doctor would give. The new evidence had not been then discovered. The defendant knew only that, having been the plaintiff's attending physician, Dr. Williams would be able to either corroborate or contradict the plaintiff's evidence respecting her injury and physical condition. She had no ground for making the affidavit required by Supreme Judicial Court rule No. 15. In failing to move for a continuance or postponement, she was chargeable with no want of diligence.

"The ready answer to this [claim that motion for continuance should be made] is that the defendant was not in possession of any information as to what Conery and the others would testify to upon which to have based an affidavit for a continuance." Cahill v. Stone Co., 167 Cal. 135, 138 P. 716. See Keister v. Rankin, 34 App. Div. 288, 54 N. T. S. 274; Realty Corp. v. Bank, 54 Misc. Rep. 508, 104 N. Y. S. 959.

(5) That the newly discovered evidence is not merely impeaching in its effect. Authorities thus holding are so numerous that it is unnecessary to cite any.

Some courts, including our own, have said that newly discovered evidence that "contradicts" an opposing party or witness cannot be made the basis of a new trial. White v. Andrews, 119 Me. 414, 111 A. 581; Bridgham v. Hinds, 120 Me. 452, 115 A. 197, 21 A. L. R. 1024; ...