Annarina v. Boland

• Decision Date: 23 April 1920
• Docket Number: 12.
• Citation: 111 A. 84,136 Md. 365
• Parties: ANNARINA v. BOLAND.
• Court: Maryland Court of Appeals

111 A. 84

136 Md. 365

ANNARINA v. BOLAND.

No. 12.

Court of Appeals of Maryland

April 23, 1920

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Action by Margaret A. Boland against Fleta Annarina, sometimes called Freda Boland. From judgment for plaintiff, defendant appeals. Reversed, and case remanded.

William Purnell Hall and Isaac Lobe Straus, both of Baltimore, for appellant.

David Ash, of Baltimore, for appellee.

OFFUTT J.

This is an appeal from a judgment of the Baltimore city court entered November 8, 1919, on the verdict of a jury in favor of the plaintiff in an action on the case by Margaret A. Boland against Fleta Annarina, for alienating the affections of John H. 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 H. Boland, and "did thereby 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 H. Boland and Margaret A. Boland were married in Baltimore a number of years ago, and lived there together until July 29, 1909 when they separated. They have one child, a son 22 or 23 years of age. Up to the time of their separation Mrs. Boland said their relations had been pleasant, and they lived happily together, but her husband, on the other hand, in describing their relations, said that they had not lived happily together for 10 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 Rowlands Turkish Baths, where he lived for 2 years, when he reoccupied the Twenty-Fifth street house after his wife had vacated it, and she then went to live at 822 East Fayette street.

Oddly enough Mrs. Boland has given no particular account of the separation between her and her husband, or of the causes which led to it, except that, in a general way, she attributed it to the appellant's influence. Boland, however, was more 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 which 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 she was guiltless, 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 companions, and to have occupied the same room 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 court, 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 1, 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 $4,200 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.

After the execution of this 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. Shortly 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 recognized 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 occupied 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 his 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.

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 first 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 occasion 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 $100, and that on these visits he treated her liberally and as in "old times"; 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 her 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 25 exceptions, 24 of which relate to the rulings of the court on questions of evidence, and 1 to its action on the prayers.

The plaintiff submitted 11 prayers, of which the court granted the second, fourth, and eleventh and refused the others, and the defendant submitted 15 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. The 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 "assume the truth of all the evidence before the jury tending to sustain the claim or defense, as the case may be, and of all inferences of fact fairly deducible from it, and this, though such evidence be contradicted in every particular by the opposing evidence in the cause" (Mallette v. British Ass. Co., 91 Md. 480, 46 A. 1006); and, when such a prayer is offered at the conclusion of the whole case, all the evidence of both parties must be considered. ( Consolidated Ry. Co. v. Pierce, 89 Md. 504, 43 A. 940).

Assuming then, the truth of...