Buch v. Hulcher

• Decision Date: 21 January 1942
• Docket Number: 83.
• Citation: 23 A.2d 829,180 Md. 309
• Parties: BUCH v. HULCHER.
• Court: Maryland Court of Appeals

23 A.2d 829

180 Md. 309

BUCH v. HULCHER.

No. 83.

Court of Appeals of Maryland

January 21, 1942

Appeal from Baltimore City Court; Rowland K. Adams, Judge.

Action by Charles R. Hulcher against Justin G. Buch for alienation of the affections of plaintiff's wife. From a judgment in favor of plaintiff, defendant appeals.

Judgment reversed and case remanded for a new trial.

Lester H. Crowther, of Baltimore, and Leo Weinberg, of Frederick (Edward L. Parlett, of Baltimore, on the brief), for appellant.

Sigmund Levin, of Baltimore (William J. Stocksdale and David Friedman, both of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE COLLINS, FORSYTHE, and MARBURY, JJ.

COLLINS Judge.

This is an appeal from a judgment of $5,000 in the Baltimore City Court on a verdict rendered by a jury in favor of the plaintiff below, appellee here, against the defendant below appellant here, for the alienation of the affections of appellee's wife.

Actions for alienation of affections have not been prohibited in Maryland.

A number of exceptions were taken at the trial, but all except five were abandoned by the appellant on appeal. The first four of these exceptions are to rulings on the admissibility of evidence and the other is taken to the ruling of the trial Court on the prayers.

The first exception was taken while plaintiff was testifying on direct examination as follows: 'Q. Did you continue to accept these invitations of Mrs. Buch? If not, tell us why? A. We accepted on two or three occasions and after that Mrs Hulcher said to me that Mr. Buch had made advances.

'Mr. Whiteford: I object. (Objection overruled; exception noted.)

'The Witness (Continuing): Had made advances and that she disliked them, and I advised her at that time that the best thing to do would be to stay away from the Buchs, and in that way I would be able to keep my employment and, possibly there wouldn't be any hard feelings.'

It is true in alienation of affection cases that statements of the alienated spouse are admissible to show the result on her state of mind of the efforts and influence of the defendant which have otherwise been proven. Hillers v. Taylor, 108 Md. 148, 69 A. 715. This statement made by her does not show that this particular action of the defendant created in her a state of mind by which she was alienated from her husband. It shows quite the contrary, for the statement is that she disliked the advances made by the defendant. This statement of the wife relating to acts of the defendant and tending to prove the willful interference of the defendant should not have been used against him as it is merely hearsay. Hillers v. Taylor, supra; Kohlhoss v. Mobley, 102 Md. 199, 211, 62 A. 236, 5 Ann.Cas. 865. Quoting in 27 American Jurisprudence at page 165: 'Any declaration of the plaintiff's spouse, made out of the presence of the defendant, while admissible to show loss of affection or that the defendant's wrongful conduct caused such loss, is hearsay and inadmissible to establish the defendant's wrongful conduct, in an action for alienation of affections.' We must further note that defendant's wife when testifying said: 'Q. What was the conduct of Mr. Buch towards you? A. Well, his conduct wasn't out of the usual. He always acted a perfect gentleman, as far as I was concerned. He never said anything out of the way, other than he made several remarks about my husband. He put himself in a little more on the top, I would say.' The testimony of the husband in the instant case as to the statement made to him by his wife, the subject of the first exception, would tend to prejudice the defendant before the jury and was also incompetent to prove the acts of the defendant because made out of his presence and hearing. Appellee contends that defendant made no motion to strike out that part of the answer which was inadmissible and that, therefore, this exception cannot be considered by us and cites as his authority the cases of Atlas Realty Company v. Galt, 153 Md. 586, 597, 139 A. 285, and Walker v. Baldwin & Frick, 106 Md. 619, 68 A. 25. In the case of Atals Realty Company v. Galt, supra, 153 Md. at page 597, 139 A. at page 289, the court stated: 'But it does not appear what it was to which he objected.' The case of Walker v. Frick, supra, is not in point. In the instant case there is no doubt that the objection was to that part of the answer which was inadmissible and that objection was overruled and an exception taken. It is true that this court said in Brashears v. Orme, 93 Md. 442, 451, 49 A. 620, 623: 'the proper practice is, when a question is asked that may call for an answer which is relevant and material, but the answer given is irrelevant and improper, to then ask the court to strike out the question and answer; and, if it be calculated to do harm, the court should instruct the jury not to consider it.' In the instant case the question was proper and part of the answer was relevant and material and it being so clear that the objection was to the inadmissible part of the answer this court feels that the exception is before us.

The second, third, and fourth exceptions relate to testimony by the plaintiff in identifying and explaining a picture of his wife and three children. The court below allowed him to testify over objections that it was a picture of his wife his daughter, and his two boys and refused a motion to strike out his answer. The picture was later offered in evidence. This picture shows the plaintiff's wife closely and affectionately surrounded by her daughter and twin sons, very nice looking children and of tender years. It does not appear to this court that the picture and questions in regard to it were at all relevant in the case. It is true that photographs are admissible to show and explain matters relevant and in those instances the admissibility in evidence of the photograph is a matter which rests in the sound discretion of the trial Court. Hensel v. Smith, 152 Md. 380, 385, 136 A. 900; York Ice Machinery Corporation v. Sachs, 167 Md. 113, 126, 173 A. 240. In the instant case, the wife was in court, appeared before the jury, and testified for her husband. These questions and the picture tended only to create sympathy in the minds of the jury for the plaintiff. Murrell v. Culver, 141 Md. 349, 352, 118 A. 803; Ickes v. Ickes, 237 Pa. 582, 85 A. 885, 44 L.R.A., N.S., 1118. No objection or exception was taken when the picture itself was offered in evidence, and we would therefore ordinarily be prevented from ruling on these exceptions. 2 Poe, Pl. & Pr., sec. 319; Klecka v. State, 149 Md. 128, 132, 131 A. 29; Deibert v. State, 150 Md. 687, 692, 693, 133 A. 847; Rasin v. State, 153 Md. 431,...