Miller v. Miller

Digges, J., delivered the opinion of the Court. Ruth Wear Miller, wife of Walter L. Miller, plaintiff, on October 22nd, 1932, filed suit in the Circuit Court for Allegany County against John L. Miller and Flora M. Miller, his wife, the parents of Walter L. Miller, defendants, seeking damages for the alienation, from her of the affections of her husband, alleged to have been caused by the defendants. The declaration in substance alleged that the plaintiff first became acquainted with her husband, the son of the defendants, about the year 1917, which acquaintance ripened into mutual love and affection for each other, and as a consequence they were, on June 13th, 1918, married; that her husband took the plaintiff to live with his parents, the defendants, in Ridgely, West Virginia, and resided there for a number of years; that the plaintiff’s husband expressed by word and act the greatest ⁴²⁷ esteem, affection, and love for the plaintiff, which expressions were sincere, and that she enjoyed the complete: devotion of her husband; that her husband agreed to provide a home for the plaintiff, and was financially able to do so, but that the defendants discouraged her husband and forbade him to have a home of his own away from them, and stated to the plaintiff and her husband that they would not permit their son to leave them and have a home of his own; that the defendants held and exercised complete influence over their son, and this influence was continuously and maliciously exercised to bring about disagreement and unhappiness between the plaintiff and her husband; that although the plaintiff always treated the defendants with kindness and consideration, the defendants wickedly and maliciously conspired to break up the marriage of the plaintiff and tlieir son, and to alienate the affections of plaintiff’s husband from her; that they constantly complained of the plaintiff to her husband and found fault with her; that they resented the presence of the plain'tiff in their house and told her that she had no business living in their house, but that they would not permit their son to leave them. That the harsh and brutal treatment of the plaintiff by the defendants became so unendurable that the plaintiff was obliged to take rooms on Debatur Street in the City of Cumberland, whore she saw her husband frequently and constantly received affectionate letters from him; that her husband continued to! he attentive and affectionate, frequently visited her and expressed regret at what had occurred, hut stated that his parents would not permit him to live with her as he wished to do; that in the fall of 1931 the defendants finally accomplished their purpose of alienating the affections of her husband, and he ceased coming to see her and ceased writing to her shortly after the defendants had told her husband that he would he disinherited from their large estate if he had anything further to da with the plaintiff; that continuously over a number of years up to the present time the defendants maliciously and wickedly conspired against the plaintiff by using their influence over the son to bring about, and did bring about, the loss of affection ⁴²⁸ of the plaintiff’s husband towards her, and that without any just or proper cause the defendants', maliciously and from hatred and ill will toward the plaintiff, alienated the affections of her husband, and deprived the plaintiff of the society, comfort, affection, and support of her husband, to her great loss and damage; that as a consequence of said alienation of her husband’s affections and her abandonment by him, she is destitute of any means of support except what she may herself earn, and has sustained great humiliation and mental agony.

To this declaration the defendants filed three pleas: First, that they did not commit the wrongs alleged; second, that the alleged cause of action did not accrue within three years before this suit; and, third, that this court ought not to take cognizance of the offense in the aforegoing declaration specified, because, while protesting that they did not commit the wrongs alleged, and are not guilty of the same, nevertheless any action which the plaintiff has for any wrongs alleged to be done by the defendants should be brought in the State of West Virginia where the defendants reside and where occurred any .of the claims which the plaintiff alleges she has against these defendants. The plaintiff joined issue on the first and second pleas and demurred to the third plea. The record does not disclose the ruling of the court on the demurrer to the plea to the jurisdiction, and we assume this plea was abandoned. It could not properly be considered, for several reasons: First, because, being a plea in abatement or dilatory plea, it cannot be joined with the general issue plea or plea to the merits; and, second, because it was not verified by affidavit. 1 Poe’s Pl. & Pr., sec. 600; Chapman v. Davis, 4 Gill, 176 ; Cruzen v. McKaig, 57 Md. 459 ; Spencer v. Patten, 84 Md. 421 , 35 A. 1097 ; Waggaman v. Nutt, 88 Md. 275 , 41 A. 154 ; Sheppard v. Graves, 14 How. 505 , 14 L. Ed. 518 ; Balto. & O. R. Co. v. Harris, 12 Wall. 65 , 20 L. Ed. 354 ; Glenn v. Williams, 60 Md. 93 ; Carroll v. Bowen, 113 Md. 154 , 77 A. 128 ; Code, art. 75, sec. 28, subsec. 84. ⁴²⁹ The plea of limitations was made the subject of the defendants’ eighth prayer, which, is,: “The defendants by their counsel pray the court to instruct the jury that even if they believe from the evidence that the defendants by their conduct alienated the affections of Walter L. Miller from the plaintiff, and that said alienation resulted in the loss of consortium between the plaintiff and her said husband for more than three years before the bringing of this suit, then the plaintiff is not entitled to recover in this ease; and the verdict of the jury shall be for the defendants.” This- prayer was specially excepted to on the ground that there was no evidence in the case to support it.

The special exception was sustained and the prayer rejected. There was no error in this ruling, because the loss of consortium occurred, if at all, within three years before the institution of the suit; there being no evidence whatever that it occurred prior to that time. The gist of this action is the loss of society, affection, assistance, and conjugal fellowship' or consortium of the husband. The first instant of time at which the plaintiff could institute an action of this kind would be immediately after the society, affection, and conjugal fellowship; usually combined and expressed by the term “consortium,” is lost.

The limitation runs from such time, and has, no reference to the words or acts alleged to have been the cause of such loss. Annarina v. Boland, 136 Md. 365 , at page 379, 111 A. 84 ; 30 C. J. 1128; 37 C. J. 898; 13 R. C. L. 1463, sec. 511; Bockman v. Ritter, 21 Ind. App. 250 , 52 N. E. 100 . The case was submitted to the jury, and at the close of the whole evidence the court granted a prayer directing a verdict in favor of the defendant Jolm L. Miller, and refused a similar prayer for a directed verdict in favor of the defendant Flora M. Miller.

The verdict and judgment was against the defendant Flora M. Miller. This action resulted in the two appeals which are contained in this record. In Mo. 31 the appellant is the plantiff below, and her contention is that the lower court erred in directing a verdict for the defendant John L. Miller, and that there was no error in refusing the prayer directing a verdict in favor of the defendant Flora ⁴³⁰ M. Miller. The contention of the appellant in Mo. 32, Flora M. Miller, is the reverse, she contending that the prayer instructing a verdict in her behalf should have been granted.

There are certain undisputed facts contained in the record which we shall briefly state, as they have an important bearing on the question under consideration, ánd these will be thus stated before examining thé controverted facts, which, if sufficient to sustain a verdict for the plaintiff against either or both of the defendants, should have been submitted to the jury for its determination and solution. The undisputed 'facts are that the plaintiff, a native of Pennsylvania, came to Cumberland, Maryland, in 1914, and entered Western Maryland Hospital to- pursue studies and receive instruction which would qualify her as a .graduate trained nurse; that she completed the training in 1917, shortly after which she became acquainted with her husband, Walter L. Miller, the only son of the defendants, they having one other -child, a daughter; that this relationship ripened into mutual love and affection and culminated in their marriage on June 13th, 1918; that this marriage took place in Pennsylvania, at the home of the plaintiff’s parents, and was not made kno-wn to the defendants until their return to- Cumberland; that the husband, Walter L. Miller, entered the army in July, 1918, and remained -there until December of that year, at which time he was discharged and returned to Cumberland; that during the time he was in the army, the plaintiff practiced her profession, and resided, when not thus engaged, with her uncle and aunt in Cumberland; that upon his return he resided with his parents, the defendants, in West Virginia, while the plaintiff continued to reside with her uncle until August, 1919, although during the period from the husband’s return from the army to- the time of the married couple taking up their residence with the husband’s parents, they saw each other daily, and from time to time lived together as man and wife; that from the summer of 1919 the couple lived with the husband’s parents in West Virginia for the period of seven years, or until some time in the year 1926, at which time the plaintiff left the home of her husband’s parents and lived in ⁴³¹ Cumberland with her younger sister, who was also a trained nurse, boarding with a Mrs. Cunningham in that town; that during the whole seven years she resided with her husband’s, parents she was occupied in their home in assisting with the household duties and helping her father-in-law to do the milking and some other chores around the place, with the exception of the periods when she would be called upon to do professional work in Cumberland, which professional duties occurred from time to time and necessitated her being away from the defendants’ home; that after she left the defendants’ home in 1926, and during the whole time of her living with them, she retained the love and affection of her husband, until the month of October, 1931, which was five years after she had ceased to reside with her husband’s parents; that during this five-year period the husband saw her daily and nearly every night, and cohabitation continued between them until October, 1931; that at the time the testimony was taken in this case the plaintiff was forty years of age and her husband thirty-nine; that shortly after the plaintiff left the domicile of her husband’s parents, the husband also left and engaged in operating a garage in the City of Cumberland, maintaining sleeping quarters over the garage, and did not spend more than a few nights with his parents during the five-year period mentioned. That on July 11th, 1932, the plaintiff filed her bill in equity in the Circuit Court for Allegany County, praying for alimony pendente lite and permanent, and counsel fees. In this bill, which was sworn to by her, it is alleged that her husband treated her with such harsh cruelty and brutality that in August, 1926, his conduct became so intolerable that she was obliged to leave his home and go live with her sister in the City of Cumberland; that since the said abandonment by the husband she had frequently offered to return to him and reside with him if he would provide her with a home such as he was financially able to do, and treat her properly, but that her husband refused and failed to do so, and declared his intention to live with her no longer; that such abandonment had continued uninterruptedly for more than ⁴³² three years prior to the institution of the divorce action, and was deliberate and final and beyond any reasonable hope or expectation of reconciliation.

A further allegation of the bill is that her husband has committed the crime of adultery with at least one party whose name will be produced at the hearing; and that she had not lived or cohabited with her husband since she discovered his said adultery. This bill for divorce was subsequently amended, the amended bill being sworn to on September 15th, 1932. In the amended bill she retracted the allegation in the original bill as to the period of separation, and therein alleged that she had been treated with harshness and cruelty by her husband; that her husband’s father and mother disliked her, without just cause, ánd abused and ill-treated her in all manner of ways; that her husband was completely subject to the influence of his parents, and made no effort to shield her from their abuse and ill-treatment and protect her from the continuous humiliation she was subjected to by his parents; that in August, 1926, his parents, without just cause or reason, forced her to leave their home, and she was obliged to live with her sister in the City of Cumberland and support herself by the practice of her profession; that, after leaving, her husband frequently came to see her and expressed regret at what had occurred, and said that his parents would not permit him to live with her as he wished to do, but professed love and affection for her and persuaded her to continue conjugal relations with him; that in October, 1931, her husband, without just cause or reason, declared his intention to abandon her, stating that his parents had threatened to disinherit him of his share of their large estate if he had anything further to do with her. She also reiterated her charge of her husband’s adultery, and that she had not cohabited or lived with him since she discovered said adultery.

The relief asked for was the same a? in the original bill. The record does not show that any disposition was made of the divorce proceedings up to the filing of the declaration in the present case claiming damages from her husband’s father and mother for the alienation of his affections. ⁴³³ The law is settled in this state that a married woman is entitled in her own name and right to sue a third party for the alienation of her husband’s affection. Wolf v. Frank, 92 Md. 138 , 48 A. 132 : Callis v. Merrieweather, 98 Md. 361 , 57 A. 201 ; Francis v. Outlaw, 127 Md. 315 , 96 A. 517, 518 ; Annarina v. Boland, 136 Md. 365 , 111 A. 84 . And this is true even though the defendants in such action are the husband’s parents.

Francis v. Outlaw, supra. The authorities properly make a distinction, however, between cases where the defendants arc strangers and those where the defendants are parents or guardians. In the latter class of cases, in order to require the parents or guardians to respond in damages, in addition to the proof of alienation it must be shown that the acts causing the alienation were done with the wilful and malicious intent to injure the plaintiff, and not out of a reasonable parental concern and solicitude for the, child. The reason for this rule in respect to suits against parents and guardians is nowhere better stated than in the early case of Hutcheson v. Peck, 5 Johns.

(N. Y.) 196, which has been quoted and applied in many subsequent decisions, wherein Chancellor Kent said: “A father’s house is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil, and a consolation in distress. Katural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves; and according to Lord Coke, it is ‘nature’s profession to assist, maintain and console the child.’ I should require, therefore, more proof to sustain the action against the father, than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband, from improper motives.

Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed.” Oakman v. Belden, 94 Me. 280 , 47 A. 553 ; Bennett v. Smith, 21 Barb. (N. Y.) 439; Westlake v. Westlake, 34 Ohio St. 621 ; Francis v. Outlaw, supra, and ⁴³⁴ cases therein cited. In the last-cited case this court,