Kline v. Ansell

• Citation: 414 A.2d 929,287 Md. 585
• Decision Date: 26 May 1980
• Docket Number: No. 96,96
• Parties: Floyd R. KLINE v. Donald S. ANSELL.
• Court: Court of Appeals of Maryland

Page 585

287 Md. 585

414 A.2d 929

Floyd R. KLINE v. Donald S. ANSELL.

No. 96.

Court of Appeals of Maryland.

May 26, 1980.

Omer T. Kaylor, Jr. and William C. Wantz, Hagerstown (Kaylor, Wantz & Douglas, Hagerstown, on the brief), for appellant.

George E. Snyder, Jr., Hagerstown, for appellee.

Argued before SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ.

DAVIDSON, Judge.

We shall here consider the question whether the common law cause of action for criminal conversation is viable in Maryland.

On 1 September 1978, in the Circuit Court for Washington County, the appellee, Donald S. Ansell (husband), filed a two count declaration against the appellant, Floyd R. Kline (paramour), for damages for criminal conversation (count one) and assault (count two). On 16 February 1979, the trial court directed a verdict against the paramour on the criminal conversation count. The jury found that the paramour had committed an assault upon the husband. It awarded $40,000 compensatory damages and $4,250 punitive damages on the criminal conversation count, and $6,000 compensatory damages and $4,000 punitive damages on the assault count. The paramour filed an appeal in the Court of Special Appeals and a petition for a writ of certiorari in this Court. We granted the petition before consideration by the Court of Special Appeals.

At common law, the cause of action for criminal conversation was available only to a man. III Blackstone, Commentaries on the Laws of England, 139-40 (Lewis's ed 1898). The gravamen of this action was adultery. Its elements consisted of a valid marriage and an act of sexual intercourse between a married woman and a man other than her husband. Tinker v. Colwell, 193 U.S. 473, 481, 24 S.Ct. 505, 506, 48 L.Ed. 754 (1904); Geelhoed v. Jensen, 277 Md. 220, 222, 224, 352 A.2d 818, 820 (1976); Woodman v. Goodrich, 234 Wis. 565, 567, 291 N.W. 768, 769 (1940). The fact that the wife consented, that she was the aggressor, that she represented herself as single, that she was mistreated or neglected by her husband, that she and her husband were separated through no fault of her own, or that her husband was impotent, were not valid defenses. See Prosser, The Law of Torts, § 124 (4th ed. 1971). The only valid defense to this action was the consent of the husband. See Kohlhoss v. Mobley, 102 Md. 199, 206, 62 A. 236, 236 (1905).

The cause of action for criminal conversation evolved from the action for enticing away a servant and depriving a master of his proprietary interest in the servant's services. Because at common law the status of a wife was that of a servant, that action was extended to include the deprivation of the wife's services. Prosser, § 124 at 873. The husband was regarded as having a property right in the body of his wife and an exclusive right to the personal enjoyment of her. The wife's adultery was therefore considered to be an invasion of the husband's property rights. A husband could maintain an action for criminal conversation even if his wife was a willing participant, because, under the common law, she was considered incapable of giving her consent to what was regarded as an injury to her husband.

While the action for criminal conversation was founded on the services which the wife owed to her husband, the underlying basis of recovery was the injury to the husband's feelings and particularly to his sense of his own and his family's honor. Many of the early cases held "that the essential injury to the husband consists in the defilement of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife and to beget his own children." Tinker, 193 U.S. at 484, 24 S.Ct. at 507. This right was recognized as "a right of the highest kind, upon the thorough maintenance of which the whole social order rests, and . . . (for the purpose of) the maintenance of the action it may properly be described as a property right." Tinker, 193 U.S. at 484, 24 S.Ct. at 507. Thus, while these cases recognized that the essence of the action was an injury to the husband's personal feelings arising from an interference with the marital relationship, they nonetheless continued to describe the basis of the action as an interference with a property right.

Over the years, there has been a gradual shift of emphasis away from the concepts of services and property rights toward a recognition of the more intangible elements of the marital relationship, such as companionship and affection. Prosser, § 124 at 873. Greater emphasis is now placed upon the concept that the wife's act of adultery is an injury to the feelings and the marital rights of the husband, and is therefore an invasion of his personal rights. Tinker, 193 U.S. at 184, 24 S.Ct. at 508; Geelhoed, 277 Md. at 233, 352 A.2d at 826. Thus, an interference with the continuance of the personal rights associated with the marital relationship is becoming recognized as the basis for this action.

In more recent years, the action for criminal conversation has come under attack. In some jurisdictions, it has been abolished by the Legislature. ¹ In others, it has been abolished by the courts. Bearbower v. Merry, 266 N.W.2d 128, 135 (Iowa 1978); Fagden v. Lenker, 469 Pa. 272, 282, 365 A.2d 147, 152 (1976). A variety of rationales have been relied upon to justify this result. The action for criminal conversation is notorious for affording a fertile field for blackmail and extortion because it involves an accusation of sexual misbehavior. Criminal conversation actions may frequently be brought, not for the purpose of preserving the marital relationship, but rather for purely mercenary or vindictive motives. An award of damages does not constitute an effective deterrent to the act of adultery, and it does not effectively help to preserve or restore a marital relationship in which adultery has already occurred. ² Indeed, a contested trial may destroy a chance to restore a meaningful relationship. In addition, this action, which eliminates all defenses except the husband's consent and which imposes liability without any regard to the quality of the marital relationship, is incompatible with today's sense of fairness. Most important, today's sense of the increasing personal and sexual freedom of women is incompatible with the rationale underlying this action. For all of these reasons, this harsh cause of action has been considered to be unreasonable and anachronistic. See generally Prosser, § 124; Clark, The Law of Domestic Relations, § 10.2 (1968).

In Maryland, as elsewhere, the common law may be changed by legislative act. ³ It may also be changed by judicial decision if this Court is convinced that it has become unsound in the circumstances of modern life. Lewis v. State, 285 Md. 705, 715, 404 A.2d 1073, 1078 (1979); Pope v. State, 284 Md. 309, 341-42, 396 A.2d 1054, 1072-73 (1979); White v. King, 244 Md. 348, 354, 223 A.2d 763, 767 (1966). An examination of the judicial and legislative history of this cause of action in Maryland shows that in 1945 the Legislature enacted chapter 1010, Laws of Maryland 1945, which abolished, among other things, the cause of action for alienation of affections. That action, which arose when a person induced a married woman to leave her husband or otherwise interfered with the marital relationship, even though no act of adultery was committed, was recognized long ago as separate and distinct from the action for criminal conversation. See Annarina v. Boland, 136 Md. 365, 374, 111 A. 84, 87 (1920); Callis v. Merrieweather, 98 Md. 361, 363, 365, 57 A. 201, 201, 202 (1904). In 1964, this Court held that the Legislature, assumably aware of our decisions, Supervisor of Assessments of Anne Arundel County v. Southgate Harbor, 279 Md. 586, 591-92, 369 A.2d 1053, 1056 (1977); Herbert v. Gray, 38 Md. 529, 532 (1873), did not abolish the separate and distinct action for criminal conversation when it abolished the action for alienation of affections. DiBlasio v. Kolodner, 233 Md. 512, 520, 197 A.2d 245, 249 (1964). In 1976, this Court recognized that the husband's action for criminal conversation was related to the State's special interest in the domestic relations of its citizens and remained viable. Geelhoed, 277 Md. at 233, 352 A.2d at 826. As recently as 1977, the Legislature, again assumably aware of our decisions, rejected House Bill 170 which expressly provided that the action for criminal conversation be abolished. Journal of Proceedings of the Senate of Maryland, Regular Session 1977, pp. 3034, 3514; Journal of Proceedings of the House of Delegates of Maryland, Regular Session 1977, pp. 162, 2397, 2904.

Were the interrelated judicial and legislative history of this action in Maryland the only factor to be considered, we would deem it inappropriate to predicate its demise on the ground that it is unreasonable and anachronistic. However, there is an additional factor of sufficient significance to persuade us that the action for criminal conversation is no longer viable.

In 1972, Art. 46 of the Maryland Declaration of Rights, Maryland's Equal Rights Amendment (ERA), was adopted. It provides:

"Equality of rights under the law shall not be abridged or denied because of sex."

In Geelhoed, the only case subsequent to the passage of the ERA in which this Court recognized that the action for criminal conversation remained viable, we did not consider the impact of the ERA. We shall here consider the impact of that Amendment upon this cause of action.

In Rand v. Rand, 280 Md. 508, 374 A.2d 900 (1977), we considered the impact of the ERA on the common law obligation of the father to support his minor children. Chief Judge Murphy, speaking for the majority, said:

"(W)e believe that the 'broad, sweeping, mandatory language' of the amendment is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the E.R.A. in this state was intended to, and did, drastically...