Outmezguine v. Maryland

This matter comes before this court on exceptions to a directed verdict for the defendant granted at the close of the testimony, the defendant having rested without introducing any evidence. The action is for alienation of affections and the writ is dated August 25, 1947, and the case was heard before a jury at the February Term 1948 of the Superior Court for the County of Cumberland. The action is brought under the provisions of Sec. 41 of Chapter 153 of the Revised Statutes of 1944, and is a special remedy given by statute upon particular facts and is subject to the conditions and limitations defined by the Legislature. Pray v. Millett, 122 Me. 40; 118 A. 721. The essential part of the statute relating to this action directs that action shall be "brought __________ within 3 years after the discovery of such offense." Under this statute the plaintiff must allege and prove the alienation of the husbands affections as of a day within three years of the date of the writ, or, alleging the alienation as of a day before that time, then she additionally must allege and show that the discovery thereof by her was within three years of the bringing of the action. Pray v. Millett, supra. Plaintiffs allegation of the alienation is laid within three years of the date of the writ, to wit, January 1, 1945. There is evidence from the record that the plaintiff and her husband resided in Cape Elizabeth, Maine, next door to the defendant for the period from 1939 to 1943 and that during that time plaintiff, on one occasion, had a conference with the defendant in which the subject of defendants attentions to plaintiffs husband was discussed, and it further appears that defendant resided on Broadway in South Portland, Maine, during the period from 1943 to 1945 and, during that time the automobile of plaintiffs husband was seen by plaintiff on numerous occasions parked in that vicinity. There is further evidence in the record that plaintiff frequently remonstrated with her husband at various times during the period from 1940 to 1945 because of defendants attentions to plaintiffs husband. The record further shows that plaintiffs husband either in 1944 or 1945 (the record is not entirely clear as to the exact time) began to frequently stay away from his home in Cape Elizabeth and that he stayed at times when he was away with a former friend in Yarmouth, Maine. However, plaintiffs husband returned to Cape Elizabeth from time to time up to March, 1945, when he definitely went to live in Yarmouth and had a room in the home of his former friend. There is also evidence that during the summer of 1945 plaintiffs husband spent a portion of his time, at least, on the family farm in Freeport where he became interested in the poultry business and that plaintiff occasionally visited him at the farm in Freeport. The record further shows that plaintiffs husband, after March, 1945, continued to occasionally visit plaintiff at the Cape Elizabeth home and that these occasional visits continued until the first of January, 1948, during a part of which time plaintiff was in a hospital where plaintiffs husband visited her practically every day. The record also shows that in 1945 defendant left South Portland and went to live in Yarmouth in the same house in which plaintiffs husband had a room.