Francis v. Outlaw

• Decision Date: 11 January 1916
• Docket Number: No. 22.,22.
• Citation: Francis v. Outlaw, 127 Md. 315, 96 A. 517 (Md. 1916)
• Parties: FRANCIS v. OUTLAW.
• Court: Maryland Court of Appeals

96 A. 517

127 Md. 315

FRANCIS

v. OUTLAW.

No. 22.

Court of Appeals of Maryland.

Jan. 11, 1916.

Appeal from Superior Court of Baltimore City; Morris A. Soper, Judge.

Action by Charles W. Outlaw against Laura V. Francis. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Charles Markell and Vernon Cook, both of Baltimore (Haman, Cook, Chesnut & Markell, of Baltimore, on the brief), for appellant. S. S. Field, of Baltimore, for appellee.

PATTISON, J. The appellee in this case, Charles W. Outlaw, recovered a judgment in the superior court of Baltimore city, against his wife's mother, Mrs. Laura V. Francis, the appellant, for alienation of his wife's affections, and it is from that judgment this appeal is taken.

The right of a husband to maintain an action against any one who has wrongfully alienated the affections of his wife and de prived him of his conjugal rights is now well established by a long line of decisions starting at least so early as the case of Winsmore v. Greenbank, Willes Reports, 577, decided in 1745; Wolf v. Frank, 92 Md. 138, 48 Atl. 132, 52 L. R. A. 102; Hutcheson v. Peck, 5 Johns. (N. Y.) 196; Oakman v. Belden, 94 Me. 280, 47 Atl. 553, 80 Am. St. Rep. 396; Smith v. Lyke, 13 Hun, 204; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Westlake v. Westlake, 34 Ohio St. 021, 32 Am. Rep. 397; Rice v. Rice, 104 Mich. 371, 62 N. W. 833; White v. Ross, 47 Mich. 172, 10 N. W. 188; Tucker v. Tucker, 74 Miss. 93, 19 South. 955, 32 L. R. A. 623; Payne v. Williams, 4 Baxt. (64 Tenn.) 583; Glass v. Bennett, 89 Tenn. 478, 14 S. W. 1085; Brown v. Brown, 124 N. C. 19, 32 S. E 320, 70 Am. St. Rep. 574; Huling v. Huling, 32 Ill. App. 519; Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638, 51 Am. St. Rep. 310; Multer v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 D. R. A. (N. S.) 322, 9 Ann. Cas. 958; White v. White, 101 Minn. 451, 112 N. W. 627; Lockwood v. Lockwood, 67 Minn. 476, 70 N. W. 784; Klein v. Klein, 47 Mich. 518, 11 N. W. 367; Harvey v. Harvey, 75 Neb. 557, 106 N. W. 660; Gernerd v. Gernerd, 185 Pa. 233, 39 Atl. 884, 40 L. R. A. 549, 64 Am. St. Rep. 646; Zimmerman v. Whiteley, 134 Mich. 39, 95 N. W. 989; Bennett v. Smith, 21 Barb. (N. Y.) 439; Corrick v. Dunham, 147 Iowa, 320, 126 N. W. 150; Eagon v. Eagon, 60 Kan. 697, 57 Pac. 942.

The law applicable to this class of cases is well stated in the case of Multer v. Knibbs, supra, which was a suit instituted by the husband against the parents of the wife for the alienation of her affections. In that case the court ordered a verdict for both of the defendants; upon appeal the court sustained the verdict as to the mother, because of a want of evidence against her, but as to the verdict in favor of the father the court said:

"In suits of this kind, brought by a husband against the father of his wife, upon the allegations that the defendant has enticed the plaintiff's wife away from him, alienated her affections, persuaded and induced her not to live with him, and has harbored, secreted, and concealed her, it is not (as it might be in an action against a stranger) enough to show that the defendant actually has performed the acts charged, and that they have resulted in an abandonment of the plaintiff by his wife. * * * It is proper for him to give to his daughter such advice and to bring such motives of persuasion or inducement to bear upon her as he fairly and honestly considers to be called for by her best interest; and he is not liable to her husband in damages for her desertion resulting therefrom unless he has been actuated by malice or ill will towards the plaintiff, and not by a proper parental regard for the welfare and happiness of his child. In such an action, the material question is the intent with which the parent acted, rather than the wisdom or even the justice of the course which he took. These questions have arisen in other jurisdictions; and so far as we have been able to discover they always have been answered in the same way. The leading case is Hutcheson v. Peck, 5 Johns. (N. Y.) 196; and the doctrine there laid down has commanded assent. * * * And the burden is upon the plaintiff to show that the defendant has been prompted by malice in what he has said and done, and to overcome the presumption that he acted under the influence of natural affection and for what he believed to be the real good of his child. Bennett v. Smith, 21 Barb. (N. Y.) 439; Pollock v. Pollock, 9 Misc. Rep. 82, 29 N. Y. Supp. 37; White v. Ross; Westlake v. Westlake; Brown v. Brown, supra; Young v. Young, 8 Wash. 81, 35 Pac. 592; Reed v. Reed, supra. But if there is evidence upon which the jury would have a right to find that the defendant has actively interfered to cause his daughter to abandon her husband, and has deprived him of her affections and of the comfort and solace of her society, and has done this from malice to the plaintiff and not for the purpose of affording proper protection to his child and furthering her true welfare, then the case must he left to the jury, with the instruction that if these facts are proved the action may be maintained. Holtz v. Dick, supra; Price v. Price, 91 Iowa, 693 [60 N. W. 202, 29 L. R. A. 150, 51 Am. St. Rep. 360]; Tucker v. Tucker and Bennett v. Smith, supra; Williams v. Williams, 20 Colo. 51 [37 Pac. 614]; Railsback v. Railsback, 12 Ind. App. 659 [40 N. E. 276, 1119]. This was recognized by all the judges in Hutcheson v. Peck, 5 Johns. (N. Y.) 196. The question accordingly is whether there was such evidence in this case."

The italics in the above-quoted parts of the opinion in that case are ours.

In the case before us the defendant at the conclusion of the testimony offered four prayers. By the first she asked the court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. The second prayer asked that the jury be instructed that they "cannot find a verdict for the plaintiff, unless they find not only that the defendant so influenced her daughter, Laura, as to alienate her affections from the plaintiff, but that in so influencing her daughter the defendant acted willfully and with malice toward the plaintiff." By the third prayer the court was asked to instruct the jury "that to establish malice on the part of the defendant it is not sufficient to show that the defendant advised her daughter or even gave mistaken advice, but it must affirmatively appear that the defendant influenced her daughter, and that such influence was exercised with malice and not in an honest effort, whether mistaken or not, for her daughter's welfare"; and the court was asked by the fourth prayer to instruct the jury "that malice on the part of the defendant in advice to or influence over her daughter, whether before or after marriage, is never presumed; that a mother at all times has a right to counsel and advise her children, married or unmarried, and that all advice or counsel given by a mother to her children, married or unmarried, is presumed to have been given in good faith and without malice, unless the contrary affirmatively appears."

The court being of the opinion that the evidence offered was legally sufficient to go to the jury tending to show that the defendant had alienated the affections of the wife for her husband, and that in so doing she was moved by malice and ill will to the plaintiff and not in an honest effort for her daughter's welfare, refused to grant the defendant's first prayer taking the case from the jury, but granted the defendant's second, third, and fourth prayers.

The sole question before us upon this appeal is whether the court was right in its refusal to grant the defendant's...