On September 27, 1922, Maud opined that “poor Ewan has begun his task of getting all possible evidence.” Mr. Law was willing to give testimony that “Pickering was in the middle of the road, did not turn out, did not sound his horn, [and] was going very fast and was equally to blame.” Two “respected and reputable” men at Mt. Albert agreed to testify that Pickering had told them after the operation that he had needed the operation anyway.
The lines of battle were drawn, but the pressures that would come to bear on the outcome were many, complicated, and insidious. In a community in which the Pickerings were long established, a subtle force was enacted through the bonds of kinship, marriage, and community entanglements. Although many people had casually mentioned to Ewan that Pickering had talked about his need for the prostate operation long before he had it, and promised to testify to this, they backed out when they realized what testifying actually meant. Ewan would then discover that a potential witness’s uncle or brother was married to someone who was a distant cousin or sibling of someone related to the extended Pickering family. In Cavendish, Maud had always been an “insider”; she would have understood instinctively how these tangled webs would affect testimony. In Leaskdale and Zephyr, the Macdonalds were effectively “outsiders.”
Another complication was the denominational rivalry between the Presbyterians and the Methodists. Ewan could not count on any Methodist testifying publicly against Pickering, no matter what people were willing to tell him privately. Presbyterian ministers like Ewan came and went, but Marshall Pickering and his family would stay in the community. Proving the truth would be more difficult than they had anticipated.
The community speculated on every aspect of the situation. “Many people in Zephyr think that it is Mrs. Pickering that put Pickering up to this,” Maud wrote in her journals, but “other people think it is Greig” (September 30, 1922). Many more were horrified that a minister was being sued, and observed that the lawsuit would never have come to pass if Ewan had not had a “rich wife.” Because there were many people on a rural telephone party line, everyone flew to the phone to listen in whenever anyone’s phone rang. Generally, the Methodists rallied against the Presbyterians, but there were always splits and defections. The only thing most people agreed on was that both men were bad drivers—Pickering went too fast and Macdonald went too slow. Even Maud admitted that Ewan was a poor driver.
In preparing for the trial, Ewan remained focused and determined. He not only canvassed everyone to whom Pickering had spoken, he also checked out all the doctors in the area. He found a Dr. Boynton in Sutton, whom Marshall Pickering had consulted about his enlarged prostate long before the accident. Dr. Boynton was willing to testify to that effect. But as soon as Pickering heard through gossip that the doctor was going to testify, he confronted him, boldly claiming that the consultation had never taken place. Taken aback, Dr. Boynton showed Pickering his notes, with Pickering’s name and the details of the visit. A quick thinker, Pickering paused, then shot back that it must have been his young nephew, another “Marshall Pickering.” Fortunately for Pickering, that nephew was no longer around, so this could not be confirmed. Although the doctor knew that prostate problems were not a young man’s ailment, he backed out of testifying because he said that he had to admit that he could not honestly remember Marshall Pickering’s face.
Next, Ewan talked to the doctor who had diagnosed Mrs. Pickering’s diabetes prior to the accident, and had sent her to Toronto specialists. Since insulin had just been discovered by Drs. Frederick Banting and Charles Best (and John Macleod and James Collip) at the University of Toronto in the winter of 1921–22, it should have been easy to discredit Mrs. Pickering’s claim that her diabetes had been caused by a car accident—especially given that the diagnosis of diabetes had already been made before the accident.
Maud groused on November 16, 1922, that as the trial drew near, their lawsuit was the talk of the communities for a twenty-mile radius. “I can’t exactly blame people. The fact of a minister being sued is a dramatic event to them—a veritable god-send in their humdrum, colourless lives. It is only natural they should make the most of it. But it is hard that Ewan and I should be butchered to make a Roman holiday! I feel all raw and bleeding, mentally and physically” (November 16, 1922). Her own Page lawsuits were still pending, but no one in her community knew anything about them.
The Macdonalds were not aware that Marshall Pickering had hired a new Toronto lawyer, Thomas N. Phelan, to assist Greig. Phelan was one of Canada’s sharpest lawyers in the emerging field of automobile law. A King’s Counsel (K.C.), Phelan was very prominent in the Toronto legal community. He suggested a trial in front of a judge, not a jury. The Macdonalds happily agreed to this, thinking that a jury might be prejudiced against an educated clergyman with a rich wife, and would feel more sympathy for Pickering, an unsophisticated farmer. They did not think of the fact that the impressive Phelan was, of course, well acquainted with all the judges where the case would be heard, and a top-flight lawyer would command respect in the small legal world of Toronto.
The trial was set for November 23, 1922, in the Assize Court in Toronto. Maud noted that Ewan had been well throughout the entire fall, although he looked very tired by the time of the trial. “I think if we win the trial the sense of success will scatter that dark complex of inadequacy in his subconscious mind which I believe is responsible for much of his trouble,” she wrote hopefully in her journal on November 21, 1922.
The Macdonalds expected to win, with both facts and medical evidence on their side. Maud worried that Ewan’s lawyers, brothers named McCullough, were more affable than sharp, but Ewan had done a good job gathering all the evidence. Even if many witnesses had fallen away, he still had found several courageous people willing to testify that Marshall Pickering had said he needed the prostate operation long before the accident. As well, the Macdonalds had doctors to testify that enlarged prostates and sugar diabetes came from pre-existing conditions, not from car accidents.
The courtroom was stuffed with people from Leaskdale and Zephyr, which boosted the Macdonalds’ morale. Some, of course, came out of curiosity, but most were there in sympathy with the Macdonalds. Even those who were afraid to testify wanted to see justice served. There was also a reporter from the Globe at the trial.
The judge presiding over the case, the Honourable Justice William Renwick Riddell, was one of the most eminent legal lights in Toronto, if not Canada. He was a Scot who proudly claimed ancestry, as Maud herself did, from a knight who had accompanied William the Conqueror to Britain. Justice Riddell, the son of a prosperous farmer in Cobourg, came with impressive credentials. Winner of the Gold Medal of the Law Society of Upper Canada, he had been called to the bar in 1891, at age thirty-one. He had married the wealthy Anna Crossen, whose father owned the Cobourg Car Works, which manufactured railway cars at the time of Canada’s railway expansion. By age forty-one, William Renwick Riddell and his wife had acquired a fine house next to Sir Oliver Mowat’s home where they entertained elegantly. In 1906, he was appointed to the Supreme Court of Ontario, where he served until 1945. He had been elected as a Fellow of the Royal Society of Canada and would receive, by his death, eleven honorary degrees from all over North America.
Riddell was part of Toronto’s elite society. An accomplished orator, he was much in demand as a speaker in Canada and the United States. He hobnobbed with the best and most powerful in the legal and political world, counting among his acquaintances Sir Wilfrid Laurier and William Lyon MacKenzie King, both prime ministers of Canada. He was very well versed in history and law, and had written the first history of Canadian jurisprudence. He wrote prodigiously on a range of topics, medical and literary: venereal diseases in the Middle Ages, hiccups, Virginia Woolf’s books (he didn’t like them), ancient dentistry, Freemasonry, Ontario history, insomnia, legal matters, and so on. Justice Riddell seemed a perfect judge for the Macdonalds, considering his Scottish background, his attraction to famous and successful peo
ple, his extensive knowledge of medicine, and his wide experience in law.
Maud gives a blow-by-blow account of the courtroom testimony in her journals. Judge Riddell’s handwritten notes have survived to confirm her account, and they shed even more light on the dramatic proceedings and astonishing judgment.
The trial began on a Thursday afternoon. Maud had watched Justice William Renwick Riddell through the morning and had misgivings. Intuitively, she sized him up as a “colossal egotist … who thinks his own judgment quite infallible” (November 26, 1922), and for once in her life, she may have been understating the case.
Marshall Pickering was the first to testify. He had said in discovery that he had seen the Macdonalds’ car some one hundred rods away, but he changed it now to twenty rods, saying he had been mistaken before. Maud acerbically comments that if he was “mistaken” in this, one would assume he might be “mistaken” in other things. He swore he was going only twenty miles per hour, and that he had sounded his horn four times (witnesses denied both those assertions). He said that he was operated on for a “congested” prostate gland, not an “enlarged” one, and he swore that he had never spoken of having prostate trouble before the accident occurred. When he was cross-examined by McCullough (Ewan’s lawyer) who cited names of their witnesses who would testify that he had spoken beforehand of the need for an operation, he admitted that he “might have said he had a burning sensation at times” when urinating.
When McCullough asked if Mrs. Pickering had ever been treated for diabetes (which everyone in the community knew she had), he said, by Maud’s journal account, “She had a little of it a few years ago but she got some medicine from the States that cured her.”
McCullough next elicited an admission from Pickering that if he had slowed to twelve miles per hour at this blind corner, he could have avoided the accident. When McCullough confronted Pickering about tampering with a witness, Judge Riddell cut off the questioning, saying it didn’t matter. When Pickering’s testimony was finished, Justice Riddell advised McCullough not to call Ewan’s witnesses—the ones who would testify that Pickering had told them before the accident that he needed an operation—because he would “give very little attention to such evidence.” When McCullough explained that he wanted to call them to “test the credibility of the witness,” Maud reported that Justice Riddell replied, “Oh, I believe the witness. He is an honest man.”
Riddell then asked McCullough to call some of the doctors. Dr. Johnson, Pickering’s own doctor, said he had found some “congestion” in the gland, and supposed the accident had caused it. Dr. Robinson, a pathologist at the University of Toronto who had dissected the gland after the operation, testified there was no congestion in the gland at all, and he “had the section of the gland there to prove it.” Further, he stated that the “operation would have been necessary in any case in two or three months.” Two more experts in kidney disease testified “that diabetes was incurable” and the accident would not have caused Mrs. Pickering’s diabetes.
In testimony the next day, Mrs. Pickering denied that she had ever been treated for diabetes before the accident, even though her husband had said the opposite on the previous day, and their doctor (Dr. Johnson) had also testified that he had diagnosed her diabetes and sent her to a specialist in Toronto before the accident. In cross-examination, she admitted that she had not consulted a doctor after the accident. McCullough picked up these discrepancies and questioned her further about seeing the specialist before the accident. Maud reports that Judge Riddell cut him off by saying, “I don’t believe she ever had diabetes or if she had she is cured.”
More people testified. Finally, Ewan and Maud testified and were cross-examined. The Macdonalds’ lawyers did not put on the rest of their witnesses, for fear of antagonizing the impatient Riddell. They believed that on the basis of testimony already given he could do nothing except find in Ewan’s favour anyway, given that experts had contradicted the Pickerings’ testimony and that the Pickerings had contradicted themselves. Maud, however, was not so sure.
She was right. Justice Riddell incomprehensibly found in favour of the Pickerings, awarding Marshall Pickering $1,000 for his operation, $500 for his suffering, and Mrs. Pickering $500, plus expenses (which amounted to over $1,000). Ewan’s lawyers and many from the community who had witnessed the trial were astonished. Maud reported that the court clerk had indiscreetly confided to the Macdonalds before the judgment came down that anyone could see “it was just a conspiracy to get money out of” them.
How could such an eminent judge as Justice Riddell—an undisputed polymath, president for twenty-five years of the Health League of Canada—have come to such a conclusion? He had written widely on medical matters— ranging from a translation of a sixteenth-century work on syphilis to articles on the history of medicine.44 Clearly, the Macdonalds were at a disadvantage in having the case tried in Toronto, where the judge did not know the community standing of the various witnesses—who was truthful, and who was not. However, cross-examinations had revealed lies in testimony, so that should not have mattered. A man of such substantial wealth as Riddell could not have been “bought off.” Nor could Pickering have offered him enough to make an under-the-table handshake worthwhile.
There are other explanations, none of which occurred to Maud and Ewan.
First, Judge Riddell’s own notes, taken during testimony at the trial, reveal factors that may have influenced his judgment. At the time of the Macdonald trial, Justice Riddell was in his seventieth year, and the notes he took indicate that he was hard of hearing.45 In 1922, there were no hearing aids, and he simply could not hear all that was said in the courtroom, and may have been too proud to admit this. His notes are riddled with errors: Pickering’s Uxbridge lawyer, Willard F. Greig, he recorded as “Gray”; Dr. McClintock he called “Clintock”; Dr. Stevenson he called “Stephens”; Mason Horner becomes “Mason Marner.” The sketchy notes appear to be taken by someone having a hard time keeping up with the testimony.
The transcript also suggests that Riddell simply was not listening attentively. Perhaps he was tired or bored. Or he had already made up his mind, and only heard selectively. For instance, he did not record the actual detailed testimony of any of the specialist doctors who testified on the Macdonalds’ side—he just entered their names—but he did record the testimony of the Pickerings’ local doctor. And he recorded only the part of Dr. Johnson’s testimony that was in the Pickerings’ favour. For instance, he wrote “prostate enlarge[d] and congested by blow.” Yet, he did not record the University of Toronto pathologist’s expert testimony and note the final clinical report that the prostate was not congested and that the enlarged prostate itself was not caused by the blow. The expert testimony should have trumped a country doctor’s initial diagnosis.
In the case of Mrs. Pickering’s diabetes, Riddell records no medical testimony at all, especially none of the specialists’ comments that contradicted her allegations. Nor does he record the discrepancy between her and her husband’s testimony in respect of the onset of symptoms. It is possible that Phelan, a Toronto lawyer who would have known that Riddell was hard of hearing, had advised his witnesses to speak softly. But other factors may also have come into play.
Riddell’s notes show that he was very much aware of the reputation of the lawyers presenting the cases. He wrote clearly in his notes that T. N. Phelan was a “King’s Counsel” lawyer, a designation of importance. Older lawyers like Riddell saw Phelan as an up-and-coming power in the legal world.79 The McCullough brothers were competent but undistinguished. The “old boy” network was strong in law, just as in other professions, and Riddell had a long history of cultivating connections within it for reasons related to his own personal agenda. He still powerful ambitions for himself. Riddell had basked in the limelight of power through his truly distinguished career, and now, late in life, he lusted for much more recognition. He needed the support of the old-boy legal network, especially of outstanding lawyers like Ph
elan, to get it.
In 1923, the year after Judge Riddell decided the Macdonald-Pickering case, he wrote to Prime Minister Mackenzie King, asking for appointment to the position of Chief Justice in the Supreme Court of Canada. His not very subtle letter, dated April 1923, read: “Unless my claims receive sympathetic consideration from yours, my loss of three-quarters of a million [dollars] and seventeen years faithful—I think I may add successful as well as honourable— service go for nothing.”46 But the appointment he so coveted was never to be his, and at age ninety-one, he was still writing to Mackenzie King, begging for recognition. One final letter stated that a friend of his “assures me that it requires but a hint from you to Churchill to have me made a Member of the Privy Council,” and a little later he says, “Or I would take a Knighthood.”
Maud was fond of saying, “The mills of the Gods grind slowly, but they grind exceeding small.” She puzzled in her journals over Riddell’s decision—one that changed her life immeasurably for the worse. In her bewilderment, she rescued Riddell’s name from the obscurity he feared, but not in the way he might have liked: her journals gave him a spicy page in her own life story, even though he made Pickering the courtroom winner.
Lucy Maud Montgomery Page 32