Di Blasio v. Kolodner

Brune, C. J., delivered the opinion of the Court. In this suit for libel, the plaintiff, Di Blasio, appeals from separate judgments of the Circuit Court for Baltimore County in favor of the defendants, Kolodner and Rezek. The alleged libel was contained in a declaration filed in a prior suit (sometimes referred to below as the “original suit” or the “criminal conversation” or “crim. con.” suit) brought by Rezek, through his attorney, Kolodner, against Di Blasio. Both judgments in the libel suit were based upon the privileged character of the publication' — that in favor of Kolodner, the attorney, being entered after his demurrer had been sustained, and that in favor of Rezek, the client, being entered upon his motion for summary judgment.

The pleadings in the original suit have been incorporated in the record in this case, and a brief statement with regard to that suit is necessary to the consideration of the 1 instant case. ⁵¹⁵ The original suit by Rezek against Di Blasio, filed on July 27, 1961, contained three counts. Each of them contained an allegation that the defendant, Di Blasio, debauched and carnally knew the wife of Rezek, the plaintiff, and caused her to become pregnant. The first count was limited to such an allegation. The second count alleged Di Blasio’s debauching and carnal knowledge of Rezek’s wife with intent to injure Rezek and to deprive him of the society and assistance of his wife and to alienate and destroy her affection for him, that such results had followed, and that Di Blasio had caused Rezek’s wife to become pregnant.

The third count alleged that by “wrongful and wicked enticements, allurements and persuasions” Di Blasio had alienated the affections of Rezek’s wife, that he had “wrongfully and maliciously” induced her to abandon Rezek’s home for short periods of time, and that she was pregnant as a result of Di Blasio’s debauching and carnally knowing her. The defendant in the original suit (Di Blasio) first filed the general issue plea in September, 1961, and on December 29, 1961, he filed a motion for summary judgment. The grounds therefor here pertinent were in substance that the declaration on its face showed the suit to be for alienation of affections, that such a cause of action had been abolished by Art. 75 C of the Code, 1 and that the declaration was in violation of that Article. Rezek’s answer to this motion was to the effect that the declaration stated a cause of action for criminal conversation and that such cause of action had not been abolished.

Judge Menchine, of the Circuit Court, held that the torts of alienation of affections and of criminal conversation were separate wrongs and that a cause of action for the latter had not been abolished. He noted, however, that the declaration was “replete with language alleging alienation of affections, subject ⁵¹⁶ matter now forbidden as a cause of action, which allegations are unnecessary, impertinent, scandalous, irrelevant and improper within the meaning of Rule 301 (i).” Pursuant to that Rule, the court on its own initiative ordered the plaintiff, Rezek, to file an amended declaration limited specifically to criminal conversation. This Rezek proceeded to do on May 24, 1962. He filed a second amended declaration on September 5, 1962, after a demurrer to the first amended declaration had been sustained (apparently on a ground not here important).

Without reviewing in detail the subsequent pleadings, we note that a motion to dismiss filed by Di Blasio on October 4, 1962, was overruled by Judge Lindsay on October 18, 1962. At the time when this case came to us the original suit was still open on Rezek's claim for criminal conversation. In the instant suit for libel which is based upon allegations contained in the original declaration filed in the criminal conversation case, the issue which we regard as controlling, as did Judge Menchine, is that of privilege. There were other issues in the trial court, and one of them — whether the suit is premature — is also sought to be raised here by the appellees.

We find it unnecessary to pass upon any of those other issues. We shall assume, as did the trial court, that all of the allegations complained of were libelous, and we shall assume without deciding (the trial court so- held) that this suit is not premature. No question of limitations is raised on appeal, and therefore none is before us. (Rezek did originally raise such a question in the trial court; Kolodner did not.) Likewise, no challenge to the validity of the statute is here involved and we express no opinion with regard thereto.

Cf. the similar comment in Babb v. Bolyard, 194 Md. 603, at 608 , 72 A. 2d 13 , a case which did not involve this statute and which seems to be the only prior case in this Court to mention it. For the purposes of this case, we shall assume its validity. 2 Because it is the most sweeping, we shall consider first the ⁵¹⁷ appellant’s contention that actions for criminal conversation as well as for breach of promise have been abolished by Ch. 1010 of the Acts of 1945, now incorporated in Art. 75 C of the Code, 1957 Ed., as now amended. These are §§ 1-6 and §§ 8-9, both inclusive (see note 1, supra), and they are collectively referred to herein as Art. 75 C. Section 1 of that Article recites abuses to which remedies for breach of promise to marry and for alienation of affections have been subjected, state that they have in many cases resulted in a perpetration of fraud, and declares “as the public policy of the State that the best interests of the people of the State will be served by the abolition of such remedies.” §§ 2, 4 and 5 of Art. 75 C provide as follows : (§2) “The rights of action heretofore existing to recover sums of money as damages for breach of promise to marry, excepting in cases where pregnancy exists, and for the alienation of affections are hereby abolished.” (§4) “No act hereafter done within this State shall operate to give rise, either within or without this State, to any of the rights of action abolished by this article.” (§5) “It shall hereafter be unlawful for any person, either as a party or attorney, * * * to file or serve, [or] cause to be filed or served * * * any process or pleading, in any court of the State, setting forth or seeking to recover a sum of money upon any cause of action abolished or barred by this article, * * § 8 of the same Article makes a violation of any provision of the Article a misdemeanor subject to- a fine of $1,000 to $5,000, or imprisonment of one to five years, or both. § 9 directs that the Article “shall be liberally construed to effectuate the objects and purposes thereof and the public policy of the State as hereby declared.” Then follows a separability clause. Alienation of affections and criminal conversation are two different torts, though they may often be rather closely related.

Restatement, Torts, Vol. 3, §§ 683, 685; Callis v. Merriewea ⁵¹⁸ ther, 98 Md. 361 , 57 A. 201 ; Hillers v. Taylor, 108 Md. 148 , 69 A. 715 (close relationship as to damages); Annarina v. Boland, 136 Md. 365 , 111 A. 84 ; Tinker v. Colwell, 193 U. S. 473 ; Antonelli v. Xenakis, 363 Pa. 375 , 69 A. 2d 102 . Cf. Prosser, Torts (2nd Ed.), § 103, p. 686, where the author argues that although actions for criminal conversation, enticement and alienation of affections are often treated as separate torts they should not be, and notes some tendency to confuse the three and lump them together. He observes that in an action for criminal conversation, proof of enticement or of alienation of affections will go to increase the damages, and that the converse also is true.

The New York statute, urged upon us by the appellant, in terms abolishes causes of action for alienation of affections, criminal conversation, seduction and breach of contract to marry. Its inclusiveness is obviously greater than that of our statute. The Pennsylvania statute (Purdon’s Pa. St. Ann., title 48, § 170, Cum.

Supp., 1962, et seq.) is much closer to ours. It abolishes, with certain exceptions, causes of action for alienation of affections and says nothing about causes of action for criminal conversation. In construing this statute the Supreme Court of Pennsylvania held that causes of action for criminal conversation were not thereby abolished. Antonelli v. Xenakis, supra.

This case has been followed in Baldridge v. Matthews, 378 Pa. 566 , 106 A. 2d 809 , and in Kanchner v. Mumie, 398 Pa. 13 , 156 A. 2d 537 . For other cases reaching similar conclusions, see Prosser, Torts (2nd Ed.), § 103, p. 698 and cases cited in note 95. The appellant seeks to distinguish the Antonelli case on several grounds, two of which are manifestly incorrect and others of which are not persuasive. Contrary to his assertions, the Pennsylvania statute does contain a “liberal construction” clause (§ 177) very similar to ours, and it does contain penal provisions.

He is correct in saying that the Pennsylvania statute does not have a declaration of public policy such as ours does (and as the New York statute does), but our public policy is declared only as to the causes of action mentioned, and the public policy to be served is, we think, implicit in the Pennsylvania Act. The appellant is also correct in stating that Pennsylvania does have ⁵¹⁹ a statute (Purdon’s Pa. St. Ann., title 46, § 558) providing that statutes decreasing the jurisdiction of a court of record are to be strictly construed. Pie does not point out that this is one of several provisions for strict construction included in the same section which abolished the rule for the construction of statutes thereafter enacted that statutes in derogation of the common law are to be strictly construed.

That rule still prevails in Maryland. City of Baltimore v. Baltimore Gas & Electric Co., 232 Md. 123, 135 , 192 A. 2d 87 . It is, of course, obvious that the statute here involved is in derogation of common law rights, and it is also evident that it was intended to be remedial in barring two kinds of suits that had often been used as instruments of fraud. On the language of the statutory provisions here involved, we think that it makes no difference in the result whether this statute is construed primarily as one in derogation of the common law or primarily as one remedial in character.

As we have already said, the terms of the statute do not apply to actions for criminal conversation. We find no reason for holding that the General Assembly did not mean exactly what it said — no more and no less — with regard to the kinds of causes of action which it undertook to abolish. It will be observed that even as to one of such causes of action which it did undertake to abolish generally — breach of promise to marry — it carefully made an exception “in cases wherein pregnancy