White v. Ely

• Decision Date: 01 December 1919
• Citation: 234 Mass. 221
• Parties: ANNA G. WHITE v. MARION R. ELY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 221

ANNA G. WHITE v. MARION R. ELY.

Supreme Judicial Court of Massachusetts, Franklin.

December 1, 1919

September 16, 1919.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, PIERCE, CARROLL, & JENNEY, JJ.

Adultery. Evidence Of adultery.

At the trial of an action of tort by one woman against another, charging that the defendant "wrongfully and wickedly debauched and carnally knew" the plaintiff's husband, there was evidence tending to show that the plaintiff had separated from her husband, a physician; that more than three years thereafter the defendant's son had called the husband to treat the defendant, who then was suffering from a physical and nervous breakdown; that ten months later the defendant purchased a farm for her son to which she and her son moved and that the plaintiff's husband gave up his practice as a physician and with his minor son lived at the farm with the defendant and her son, occupying a room there not connected with the defendant's apartments. The husband testified that conduct of his wife compelled him to give up his practice, and that he cared for the farm in consideration of his son and himself receiving their board and clothing. Although the defendant and the plaintiff's husband frequently were seen in each other's company, there was no evidence of immodest conduct, of indecent familiarity nor of clandestine meetings or compromising language or situation. Held, that a finding that the defendant committed adultery with the plaintiff's husband was not warranted.

TORT, the plaintiff alleging that the defendant "wrongfully and wickedly debauched and carnally knew" the plaintiff's husband. Writ dated October 22, 1917.

In the Superior Court the action was tried before Aiken, C. J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered for her. The motion was denied. There was a verdict for the plaintiff in the sum of $15,000; and the defendant alleged exceptions.

The case was argued at the bar in September, 1919, before Rugg, C. J., Braley, De Courcy, Crosby, & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.

E. F. McClennen (F.

J. Lawler with him,) for the defendant.

W. A. Davenport for the plaintiff.

CARROLL, J. The plaintiff alleged that the defendant committed adultery with her husband on March 1, 1917, and upon other days and times between that date and September 4, 1917. At the close of the evidence the defendant filed a written motion asking that a verdict be directed in her favor; the motion was denied and the defendant excepted. There was a verdict for the plaintiff of $15,000.

The plaintiff was married to J. Lewis White in 1899. In 1907 he was a practising physician in East Orange, New Jersey. In 1910 she separated from him, but in 1912 returned, and lived with him until May, 1913. In that year he began proceedings for divorce against her in the courts of New Jersey, alleging adultery; the divorce was denied on the ground that the act complained of was connived at and consented to by her husband.

In November, 1916 White was called by the defendant's son (who was eighteen years of age at the time of the trial) to her home in Orange, New Jersey, where she was confined to her bed suffering from a physical and nervous breakdown. He began treating her professionally and continued to do so until the fall of 1917. In September of that year Mrs. Ely came to Greenfield and with her son occupied a farm, on the Bernardston Road, which she had purchased for him. About this time White gave up his practice and with his son (about thirteen years of age) came to live at the Ely farm. There was evidence that White and the defendant went together on automobile trips, and, with the two boys, attended moving picture performances...