Callis v. Merrieweather

Jones, J., delivered the opinion of the Court. The appeal in this case is from a judgment obtained in the Court below by the appellee against the appellant upon the cause of action which the narr. in the case sets out as follows: “For that on the 12th day of November, 1879, the plaintiff (appellee here), intermarried with Sallie W. Merrie ³⁶² weather, and that up to the time of committing the wrongs alleged herein, have been living together as man and wife. And the plaintiff alleges that the defendant, (appellant here), the said Augustus B. Callis, contrived and wrongfully intended to deprive him of the comfort, society, aid, and assistance of the said Sallie W. Merrieweatner, the wife of the plaintiff, and to alienate her affections for him, unlawfully and unjustly gained the affections of his said wife, whereby the plaintiff was forced to leave and abandon her, whereby the said plaintiff lost the comfort, company, society, aid and assistance of his said wife and her affections for the plaintiff, were wholly alienated and destroyed.” The narr. is awkwardly constructed, but the substance and meaning of its allegations are sufficiently plain. At the trial of the case no question appears to have arisen upon the pleadings or upon offers of evidence.

At the conclusion of the evidence the appellee (plaintiff below), offered for the approval of the Court three instructions to the jury, all of which were granted. The appellant (defendant below), offered five of which the first'was refused, the second withdrawn and the third, fourth and fifth were granted by the Court. The prayer which was refused (the first), asked that the jury be instructed “that there is no evidence legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant.” To the granting of appellee’s prayers and each of them, and the rejection of the appellant’s first prayer the appellant excepted. This is the single exception presented for the consideration of this Court; and this, we think, is free from difficulty.

The record presents no question that makes it necessary or appropriate to go into a general discussion of the law applicable-to the class of actions to which the one here under consideration belongs. We have said in Wolf v. Frank, 92 Md. 138 : “There has been but little, if any, difference of opinion as to the right of a husband to sue for what is termed ‘the loss of consortium’ that is the loss of his wife’s society, affection and assistance, and when any one, by the alienation of ³⁶³ her affections, deprives him of his conjugal rights he is liable to respond in damages.” We find it stated in Cooley on Torts, 225, (marg.): “The action for seducing the wife away from the husband is by no means confined to the case of improper and adulterous relations, but it extends to all cases of wrongful interference in the family affairs of others whereby the wife is induced to leave the husband or to so conduct herself that the comfort of the married life is destroyed.” The italics are ours. In support of the text just quoted reference may be had to Hermance v. James, 47 Barb. N. Y. 123, and to Rinehart v. Bills, 82 Mo. 534 .

Both the narr. and the evidence here bring this case within the law as thus laid down—the narr. in its allegation of fact and the evidence in its tendency to prove the allegation of fact in the narr. There was evidence to the effect that the appellant was the pastor in charge of the church in which the appellee’s wife was the organist; that the appellant evinced a partiality for her society; was frequently seen with her; went frequently to the appellee’s house in his absence—more frequently going in the back way than the front; that appellant's attentions were so persistent and noticeable as to excite criticism and comment among the members of the congregation some of whom called appellant’s attention to rumors and comment as-to his attentions to and relations with the appellee’s wife, but without producing a change of conduct upon the part of the parties concerned. One witness testified that he had so frequently seen the appellant and appellee’s wife together that he thought they were man