Albert v. McGrath

• Decision Date: 31 July 1958
• Docket Number: Civ. A. No. 2448-56.
• Citation: 165 F. Supp. 461
• Parties: Earshlie I. ALBERT, Plaintiff, v. Margaret C. McGRATH.
• Court: U.S. District Court — District of Columbia

165 F. Supp. 461

Earshlie I. ALBERT, Plaintiff, v. Margaret C. McGRATH.

Civ. A. No. 2448-56.

United States District Court District of Columbia.

July 31, 1958.

Arthur L. Willcher, Washington, D. C., for plaintiff.

Jean M. Boardman, Washington, D. C., for defendant.

TAMM, District Judge.

The present action is a suit filed by Mrs. Earshlie I. Albert against the defendant, Mrs. Margaret C. McGrath. The complaint is set forth in two counts —count one charging the defendant with having alienated the affections of the plaintiff's husband, Mr. Albert, and count two charging the defendant with having had criminal conversation with Mr. Albert.

At the close of the plaintiff's case, the defendant moved for a directed verdict as to both counts of the complaint. This Court took the motion under advisement and required the defendant to offer her evidence. At the conclusion of all of the evidence, the defendant renewed her motion to dismiss, and the Court acting under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., continued the motion under advisement. After instruction to the jury, both issues were submitted to the jury. The jury returned a verdict on count one of the complaint in favor of the plaintiff in the sum of $5,000.00 but found for the defendant as to count two of the complaint. Thereafter, the defendant filed a motion for judgment n.o.v. to which the plaintiff filed objection, and hearing was waived on this motion.

The defendant sets forth two contentions in support of her motion for a directed verdict as to count one of the complaint. Her first contention is that as a matter of law this action for alienation of affections cannot be maintained because the law of Maryland is the governing law, and that state has abolished such an action. Annotated Code of Maryland, Art. 75C. Her second point is that the plaintiff has not shown that the "loss of consortium" which is the gist of such an action was caused by the defendant.

Regarding her first point, defendant's argument is briefly this: The plaintiff and her husband were residents of Maryland at the time the alleged alienation of affections took place; the plaintiff has maintained her residence in Maryland to the present; and, the injury or damage complained of did not occur in the District of Columbia but rather in Maryland, which, as stated above, was the site of the home of the plaintiff and her husband. Defendant argues that since the basis for such an action is loss of consortium, this injury could occur only at the marital domicile and thus, the law of the marital domicile should apply. As previously pointed out, an application of Maryland law to the present situation would deprive this plaintiff of a cause of action for alienation of affections.

As stated previously, the gist of such an action is loss of consortium. Chief Justice Shepard in the case of Dodge v. Rush, 28 App.D.C. 149, at page 152 wrote the following:

"The gist of the action for the alienation of affections is said to be the loss of consortium—that is, the loss of the conjugal fellowship, company, cooperation, and aid of the husband or wife. Loss of consortium is the actionable consequence of the injury, and alienation of affections is a matter of aggravation."

The theory of such an action as this was originally the loss of services:

"For it was presumed that by the reduction or alienation the wife's services were rendered less valuable. But whatever may have been the principle, originally, upon which this class of action was maintained, it is certain that the weight of modern authority bases the action on the loss of consortium; that is, the society, companionship, conjugal affections, fellowship and assistance." (Madden on Persons and Domestic Relations, p. 166).

"The husband's interest in his relation with his wife first received recognition as a matter of her services to him as a servant. Over a period of some centuries it took form as something considerably broader than this, which was given the name of `consortium'. Consortium was said to be made up of a bundle of legal rights to the alliterative trio of the services, society and sexual intercourse of the wife. To these elements the modern law has added a fourth, that of conjugal affection. The rights of a husband extend to all four; and while it is seldom that the defendant's conduct interferes with only one of them, it now seems clear in nearly all jurisdictions that such interference with any one will be sufficient as a foundation for the action. The loss of services essential at the beginning, no longer is indispensable and is now only one element upon which the action may be based." Law of Torts, Prosser, p. 683.

Continuing at page 691:

"* * * and in virtually all states, the wife is now given the same rights and remedies as the husband, either by specific statutes or by a more liberal interpretation of the Married Women's acts in recognition of social changes."

Thus, in many jurisdictions the common law disability that attached to women has been removed, and the right of a woman to sue in such an action as this has been recognized. Such is the law in the District of Columbia. Hitaffer v. Argonne Co., 87 U.S.App. D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366.

The basic problem involved in the present case is one of conflicts of laws. The action is maintainable in the District of Columbia but has been abolished in the state of Maryland. Thus, it becomes necessary to determine which body of law is to govern the facts in this case. The factual basis for the existence of this conflict problem is that the acts or wrongs that effected the alienation took place in the District of Columbia, while the injury or damage, according to the defendant, took place in Maryland.

The general rule of law applicable in conflict situations in tort actions is stated in Orr v. Sasseman, 5 Cir., 239 F.2d 182, 186:

"The law of the place where the tort or wrong has been committed is the law by which liability is to be determined. The place of the wrong is the place where the injury was sustained rather than where the acts were committed. It is the place where the last event necessary to make an actor liable for an alleged tort takes place."

Also, "the place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place." Restatement, Conflicts of Law, Sec. 377.

The defendant, in addition to relying upon the general rule as stated above, also relies upon the case of Eastern Air Lines v. Union Trust Co., 95 U.S.App. D.C. 189, 221 F.2d 62, and upon the case of Bernstein v. National Broad-casting Co., D.C. 129 F.Supp. 817, affirmed at 98 U.S.App.D.C. 112, 232 F.2d 369. In the first of these cited cases, the court does no more than restate the general rule regarding tort situations coupled with a conflict of law question and states why the general rule does not apply in that case. The majority of the court held that the law of the state where the negligence or wrongful acts took place should measure the extent of the damages rather than the law of the District of Columbia where the injury actually took place. However, the basis for this ruling was an interpretation of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, which, the majority of the court held, disregarded the general rule by reason of its wording. The court, 221 F.2d at page 80, wrote:

"The general conflicts rule disregards the law of the place of the negligent act or omission and, instead, uses the law of the place where the injury was sustained. My brothers Edgerton and Fahy * * * hold that Congress thus provided in explicit terms for the Government's liability to be measured under the law of the place where its negligent employee's act or omission occurred, and that therefore the Act requires Virginia law to be applied in this case."

In the second cited case relied upon by the defendant, Bernstein v. National Broadcasting Co., supra, many issues were presented to the trial court—one of which being a conflict of law situation involving tort liability. The action was based on invasion of privacy by publication through a television broadcast. The publication was set in motion in New York with the acting of the story and transmission was completed in the District of Columbia. The trial court held that the impact took place in the jurisdiction where the plaintiff was when his feelings were wounded. (There was a dispute as to whether the law of the District of Columbia, or the law of Virginia, would apply. The plaintiff admitted that his domicile was in Virginia but contended that his greater number of contacts were in the District of Columbia.) Judge Richmond Keech, whose opinion the Court of Appeals for the District of Columbia adopted, held that since the gravamen of the action is injury to the feelings of the plaintiff, the mental anguish and distress caused by publication and as this tort is a personal injury, "the question whether plaintiff has a cause of action on the facts stated by him should be determined by the law of the jurisdiction where he sustained the injury."

"Thus * * * although the publication was set in motion in New York with the acting of the story and the transmission was completed in the District of Columbia by WNBW, the harm did not occur until the impact of the telecast upon plaintiff, in whatever jurisdiction

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