Stricker v. Scott

• Court: Supreme Judicial Court of Massachusetts
• Citation: Stricker v. Scott, 283 Mass. 12 (Mass. 1933)
• Decision Date: 22 May 1933
• Parties: FRED E. STRICKER v. FLORENCE SNOW SCOTT.

283 Mass. 12

FRED E. STRICKER v. FLORENCE SNOW SCOTT.

Supreme Judicial Court of Massachusetts, Hampden.

May 22, 1933

September 22, 1932.

Present: RUGG, C.

J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.

Evidence Competency, Res inter alios. Practice, Civil, Exceptions whether error harmful. Probate Court, Decree.

A decree, entered in a probate court upon a petition by a wife for separate maintenance and in the following form: It "appearing to the court that said petitioner is not for justifiable cause actually living apart from her said husband: It is ordered that said petition be dismissed"; was incompetent evidence at the trial of an action, begun two years later, by the husband against a third person for alienation of the affections of his wife.

After twice excluding the decree above described during a trial of the action which occupied eight court days, the trial judge admitted it, but at the close of the evidence and before the closing arguments by counsel, withdrew it, stating that its admission had been under a mistaken view of the evidence and instructing the jury in the following language: "I am going to withdraw that exhibit from this case; and I ask you not academically, but positively, to consider that exhibit withdrawn, and not to consider it in any way in your deliberations on this case, being of the opinion as the evidence now stands it has no probative value." Upon an exception by the defendant, it was held, that the error in the admission of the decree was corrected by the peremptory instructions of the trial judge to the jury.

TORT. Writ dated January 14, 1929. In the Superior Court, the action was tried before Collins, J. Material evidence and the single exception by the defendant are described in the opinion. There was a verdict for the plaintiff in the sum of $35,000. The defendant alleged an exception.

H. M. Ehrlich, for the defendant.

C. R. Clason, (A.

R. Simpson & G.

J. Callahan with him,) for the plaintiff.

RUGG, C.J. The plaintiff seeks in this action of tort to recover damages alleged to have been sustained by him by reason of alienation of his wife's affections and for loss of consortium. The writ was sued out in January, 1929.

The exceptions present a very narrow point. Testimony was admitted without exception to the effect that early in 1927 the wife of the plaintiff brought against him a petition in the Probate Court for separate support, that there was a hearing on that petition at which both the plaintiff and his wife testified and that the wife lost her case. There was offered in evidence a certified copy of the decree upon that petition containing this: "it appearing to the Court that said petitioner is not for justifiable cause actually living apart from her said husband: It is ordered that said petition be dismissed." This copy was offered and excluded by the trial judge at least twice during the trial (which occupied eight court days) but finally was admitted subject to the exception of the defendant. Two days later, at the close of the evidence but before arguments of counsel, the trial judge of his own motion addressed the jury stating that he admitted it under a mistaken view of the evidence, and proceeding in these words: "I am going to withdraw that exhibit from this case; and I ask you, not academically, but positively, to consider that exhibit withdrawn, and not to consider it in any way in your deliberations on this case, being of the opinion as the evidence now stands it has no probative value." The single exception is to the admission of the copy of the decree. The copy was not competent evidence and ought not to have been admitted. It was the final disposition of a litigation to which the defendant was not a party. It was not a proceeding in rem which bound everybody whether a party to it or not. It had no bearing upon the state of mind of the plaintiff's wife toward him. It simply showed the decision of the judge. The outcome of the proceedings in that petition had no relevancy to the present action. The plaintiff is not aided by anything decided in Claffey v. Fenelon, 263 Mass. 427, 431, 432. That case arose respecting the trial of an issue as to the...