Annarina v. Boland

³⁶⁹ Offutt, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court entered November 8th, 1919, on the; verdict of a jury in favor of the plaintiff in an action on the case by Margaret A. Boland against Meta Annarina, for alienating the affection of John IT. Boland, the plaintiff’s; husband. In the declaration the plaintiff states that she is the wife of John H. Boland, and that the; defendant knowing that, “did heretofore” by divers and devious means,, alienate the affections of the said John IT Boland, and “did theaeb) obtain” from him sundry sums of money and a house, so that as a result, the; plaintiff’s home was; broken up,, she was separated from, her husband, and he and the defendant lived together in adultery in the home once occupied by the plaintiff.

To this declaration the defendant pleaded the general issue, upon which issue was joined. The facts disclosed by the record briefly stated are these: John'EL Boland and Margaret A. Boland were married in Baltimore a number1 of years ago-, and lived there together until July 29th, 1909, when they separated. They have one child, a son tw'enty-two or three years of age. Dp to the time of their separation, Mrs. Boland said, their relations had been pleasant and they lived happily together1, but her husband on the; other hand in describing their relations said that they had not lived happily together for ten years, and that he did not eat over three meals in his; home in a year.

After the separation Mrs. Boland continued to live at their former home;, 310 East Twenty-fifth Street, while Boland went to Rowland’s Turkish Baths, where he lived for two years, when, he reoccupied the Twenty-fifth Street house after his, wife had vacated it, and she then went to live at 822 E. Fayette Street. Oddly enough Mrs. Boland has given no particular account of the separation between her and her husband or of th causes which led to it, except that, in a general way, she attributed it to the appellant’s influence. Boland, however, ³⁷⁰ was mora specific. He said that he had obtained from a man named Sapp» an affidavit to the effect that he had had improper relations with Mrs. Boland, and with this he (Boland) confronted her.

She denied the charge but Boland left the home and on the next day filed a suit against the appellee for divorce on the ground of adultery. In this proceeding Mrs. Boland filed a cross bill in which she also asked for an absolute divorce on the -ground that, while she1 was gluiltless, her husband had been guilty of adultery. The charge made in that suit by the husband that his wife had committed adultery with the person named in the bill of complaint before its institution does not appear to have been sustained, for the Court dismissed the original bill and upon the cross-bill granted Mrs. Boland an absolute divorce from her- husband on the ground of adultery. Before that decree was filed Mrs. Boland, in 'September, 1909, is said to have taken a trip» to New York with another woman and two male co»mp»anions, and to» have occupied the same ro»om with one of the men in a hotel for several days.

After the decree was signed but before it became enrolled Mrs. Boland filed a petition to have it reformed in respect to» the allowance for alimony. In considering this petition the Co»urt, its attention having been called to the New York trip», decided that the decree had been obtained by a fraud upon the Court, struck it out, and dismissed both the original and cross-bills. On February 1st, 1912, Mr. and Mrs. Boland executed a deed of separation in which the parties», after reciting that “great and irreconcilable differences had arisen between them” and that it had become impossible for them to live together as man and wife, agreed to live apart, and that neither would endeavor to exercise any marital control or rights over the other or to» have any marital relations with the other. Under this deed Mrs. Boland received $1,200’ for the release and relinquishment of her marital rights in her husband’s property and of any claim she might have to support from him. , ³⁷¹ After thet, execution of thisi deed Mrs. Boland moved to 822 E. Fayette Street, and her husband, after’ having some repairs made to it, moved back to his former home on Twenty-fifth Street. iShortly after that he installed the defendant Fleta Annarina in his home ostensibly as housekeeper, in which position she has since remained.

Her duties, at least in the beginning, appear to have been light, and her treatment kind. "With the assistance of a housemaid she kept the six room house in order and looked after the needs of her employer. Later Mr. Boland’s mother, a paralytic, came to live with them and then the appellant was also required to and did nurse and care for her. Just when Boland first met this woman is not at all clear from the testimony.

He testified he first met her in 1911 and the appellant also places their meeting in the spring of 1911, but Mrs. Boland testified that she first knew of Boland’s misconduct with the appellant when the appellee and Boland were still living together; that before they had had any trouble at all she saw him. and the appellant coming from ,a house of ill fame; that while at that time she did not know who the woman with her husband, was she later reeogpized the appellant as the woman; that while her divorce case was pending she saw her husband and the same woman come from a hotel and enter an automobile, and that at about the time of their separation she saw the appellant and Boland come out of Boland’s office at night. From the time the appellant entered Boland’s home in 1911, their relations appear to have been exceedingly intimate. They are said by the appellee’s witnesses to have oe^ cupied the same room, and the same bed, and to have conducted themselves as though they were man and wife, rather than master and servant; He referred to her as “Freda Boland,” he gave her money and property, carried bis own bank account in her name in trust for them both, paid her bills and loaned her jewelry, all in addition to paying her her regular wages. ³⁷² Notwithstanding, the separation, Mrs. Boland retained a keen interest in her husband and his affairs, which manifested itself in various ways. She had him, arrested and prosecuted on a charge of adultery and also testified against him on a charge of receiving stolen goods knowing them to be stolen.

He also blamed her for procuring an unprovoked assault on him by two men as a result of which he was severely injured, and he said she had herself threatened to shoot him a dozen times, and on one accasion came to his home in his absence and so conducted herself that he swore out a peace warrant against her. Notwithstanding all this the plaintiff’s witnesses testified that after the deed of separation her husband continued to visit her, often staying all night at her home, and had on numerous occasions, the latest of which was in 1919, had marital intercourse with her. That he on one occasion at Christmas sent her a card and one hundred dollars and that' on these visits he treated her liberally and asi in “old tim.es.” That he wanted to become reconciled to her but was prevented by his fear of the appellant who threatened to kill him if he went back to her. This testimony is emphatically denied by the defendant, but with the solution of that conflict this Court has nothing to do.

It was under these circumstances that the appellee first sued the appellant for alienating h'er husband’s affections. That suit for some reason was not pressed, and a judgment of non pros, entered in it, and later this suit brought. There are twenty-five exceptions, twenty-four of which relate to the rulings of the Court on questions of evidence, and one to its action on the prayers. The plaintiff submitted eleven prayers, of which the Court granted the second, fourth and eleventh and refused the others, and the defendant submitted fifteen prayers, of which the third, fourth, eleventh and twelfth were granted and the rest refused.

In addition to these prayers the Court prepared and granted an instruction of its own. ³⁷³ Tlie defendant’s first prayer directed a verdict for the defendant on the ground that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and counsel for the appellant earnestly contended that this prayer should have been granted. In dealing with the proposition presented by it there are two questions to be considered; first, whether there is any legally sufficient evidence tending to show the defendant did alienate the. affections of John H. Boland from the appellee, and second, if there is legally sufficient evidence of such alienation, whether the deed of separation between John H. Boland and the appellant barred her right of action therefor. In disposing of the first question the Court “assumes the truth of all the evidence before the jury tending to sustain the claim or defense as the case may he, and of all inferences of fact fairly deducible from it, and this though such evidence he contradicted in every particular by the opposing evidence in the ease” Malette v. British Ass. Co., 91 Md. 480 , and when such a prayer is. offered at the conclusion of the whole ease all the evidence of both parties must be considered.

Consolidated Ry. Co. v. Pierce, 89 Md. 504 . Assuming then the truth of all the evidence in the case tending to sustain the plaintiff’s claim, it cannot he said there is no evidence in the case legally sufficient to warrant its submission to a jury. While it would serve no useful purpose to recapitulate the evidence at length, it may he said that there is testimony in the case; which if true, would show that Boland and the appellee lived together happily as husband and wife until some time in the year nineteen hundred and nine, when the husband left their home; that just before their separation the appellee saw her husband and the appellant coming out of a house of ill fame; that shortly after that he confronted her with a false affidavit to the effect that she had committed adultery with a man named Sapp; and that almost immediately thereafter lie filed a suit for divorce ³⁷⁴ against her on that ground, which he failed to maintain; that during the pendency of that suit he was seen coming from a hotel and driving in an automobile with the appellant; and that at about that time he was also seen leaving his office with her at night; that in 1910 or 1911 Boland repeatedly had adulterous intercourse with the appellant; that she was trying to hide her relations with Boland, for about the same time, while in an automobile, she expressed a fear that if she left it she might be seen by the appellee; that as soon as Boland secured possession of his home, he installed the appellee there as his mistress; that they lived together there as husband and wife, and that she assumed, with his consent, his name; that he desired to return to his wife and resume marital relations with her, but was prevented by the threats of the appellant.

This testimony, if true, together with such inferences as may legitimately be drawn from it, is sufficient to require the submission of the case to a jury. In dealing with the second question involved in the con-* sideration of this prayer, that is, whether the action was barred by the deed of separation, a question of law rather than fact is presented, and one too upon which the authorities are not in harmony. It is stated that in actions on the case for alienation of affection “A separation agreement between husband and wife is no defense to an action for alienating the husband’s affections,” 21 Cyc. 1621, but it is also' stated in the same volume, under the title “Criminal Conversation,” where the spouses are living apart1 under articles of separation, the consortium being voluntarily relinquished, it has been held that the husband has no right of action,” Ibid. 1628. Whilst there are differences in the two classes of actions, so far as the principle here involved is affected, there is no distinction sufficient to account for this conflict and it rests upon fundamental differences in the views of the different courts out of whose decisions it grows.

Reason and the weight of author ³⁷⁵ ity, in our opinion, support tbe principle that the fact that husband and wife are living apart, whether under articles of separation or not, is not a bar to an action for alienation of affections or criminal conversation, by either1. The contrary view seems to rest upon the decision in the old case of Weedon v. Timbrell, 5 T. R. 360, in which Ashkitrst, L, said: “The gist of the action is the loss of the comfort and society of the plaintiff’s wife. * Then taking that as the principle, it follows that if the plaintiff separate himself from his wife, he cannot be said to be deprived of that comfort and society, which he has before renounced.” That case appears to have been followed in Winter v. Henn, 4 C. & P. 499; Bartelot v. Hawker, Peake’s Cases, 11; and in Hodge v. Windham, Ibid, 53. But in Chambers v. Caulfield, 6 East. 244, Lord Ellen-borough, in speaking to the point whether the fact of a separation between husband and wife by deed was such an absolute renunciation of his marital rights as precluded the husband from maintaining an action for the seduction of his wife, said that he “did not consider that question concluded by the decision in Weedon v. Timbrell,” and while in Malcolmson v. Givens, Times, February 27, 1873, the Judge Ordinary, on authority of Weedon v. Timbrell, dismissed a petition for damages by a husband who> was separated from his wife, yet in the proceedings on Malcolmson's Divorce Bill in the House of Lords, Lord Oiielmseord said, “their Lordships must not be assumed to assent to the doctrine that damages could not be recovered where adultery was committed while the husband and wife were living apart.” And in Izard v. Izard & Leslie, 14 P. D. 46, Butts, J., said: “Now as to the separation deed — It has been said that if a husband and wife) have consented to like and do live separate and apart from one another, and the wife commits adultery, that deed is a' bar to any recovery by the husband. If that ever has been said I think it is very wrong, * ’x' 'x' if a man ³⁷⁶ makes the acquaintance of another man’s wife, engages her affections, is the cause of her separation from her husband, and then, after such separation, commits adultery with her, the husband is entitled to the same amount of damages as he would have been entitled to if no separation deed had been executed between them, and that even if no adultery had been committed before the separation.” And in the later case of Evans v. Evans (1899) P. D. 195, in which the husband and wife were living apart, on a petition of the husband for a dissolution of the marriage and the allowance of damages, the Court said: “It cannot be denied that there have been thrown out, at different times and in various cases, suggestions tending to- show that where a husband and wife have become separated the husband cannot afterwards claim damages.

That is not, however, the law. * * * j -(¿e authorities have been misunderstood, when it is argued that the mere separation of the husband and wife constitutes an answer to a claim for damages. * * * A man is wronged by the seduction of his wife far beyond the loss he sustains by the breaking up of his home. * * * It is a matter for consideration whether a man, whose wife has been seduced by another man, has not been subjected to intolerable insult and wrong; and the fact that he has already parted from