Miller v. Miller

• Decision Date: 07 December 1933
• Docket Number: 31,32.
• Citation: 169 A. 426,165 Md. 425
• Parties: MILLER v. MILLER (TWO CASES).
• Court: Maryland Court of Appeals

169 A. 426

165 Md. 425

MILLER v. MILLER (TWO CASES).

Nos. 31, 32.

Court of Appeals of Maryland

December 7, 1933

Appeals from Circuit Court, Allegany County; D. Lindley Sloan, Judge.

Suit by Ruth Wear Miller against John L. Miller and Flora M. Miller. From a judgment in favor of the defendant John L. Miller, the plaintiff appeals; and from a judgment in favor of the plaintiff and against the defendant Flora M. Miller, she appeals.

Affirmed.

Appellate court, in passing upon question presented by defendant's prayer for instructed verdict, must assume truth of plaintiff's evidence, and inferences favorable to plaintiff.

Argued together before BOND, C.J., and PATTISON, URNER, ADKINS DIGGES, and PARKE, JJ.

Albert A. Doub, Jr., of Cumberland, and George Cochran Doub, of Baltimore (Parker, Carey & Doub, of Baltimore, on the brief) for Ruth Wear Miller.

Edward J. Ryan and Walter C. Capper, both of Cumberland, for John L and Flora M. Miller.

DIGGES Judge.

Ruth Wear Miller, wife of Walter L. Miller, plaintiff, on October 22, 1932, filed suit in the circuit court for Allegany county against John L. Miller and Flora M. Miller, his wife, the parents of Walter L. Miller, defendants, seeking damages for the alienation from her of the affections of her husband alleged to have been caused by the defendants. The declaration in substance alleged that the plaintiff first became acquainted with her husband, the son of the defendants, about the year 1917, which acquaintance ripened into mutual love and affection for each other, and as a consequence they were on June 13, 1918, married; that her husband took the plaintiff to live with his parents, the defendants, in Ridgely, W. Va., and resided there for a number of years; that the plaintiff's husband expressed by word and act the greatest esteem, affection, and love for the plaintiff, which expressions were sincere, and that she enjoyed the complete devotion of her husband; that her husband agreed to provide a home for the plaintiff, and was financially able to do so, but that the defendants discouraged her husband and forbade him to have a home of his own away from them, and stated to the plaintiff and her husband that they would not permit their son to leave them and have a home of his own: that the defendants held and exercised complete influence over their son, and this influence was continuously and maliciously exercised to bring about disagreement and unhappiness between the plaintiff and her husband; that although the plaintiff always treated defendants with kindness and consideration, the defendants wickedly and maliciously conspired to break up the marriage of the plaintiff and their son, and to alienate the affections of plaintiff's husband from her; that they constantly complained of the plaintiff to her husband and found fault with her; that they resented the presence of the plaintiff in their house and told her that she had no business living in their house, but that they would not permit their son to leave them. That the harsh and brutal treatment of the plaintiff by the defendants became so unendurable that the plaintiff was obliged to take rooms on Decatur street in the city of Cumberland, where she saw her husband frequently and constantly received affectionate letters from him; that her husband continued to be attentive and affectionate, frequently visited her and expressed regret at what had occurred, but stated that his parents would not permit him to live with her as he wished to do; that in the fall of 1931 the defendants finally accomplished their purpose of alienating the affections of her husband, and he ceased coming to see her and ceased writing to her shortly after the defendants had told her husband that he would be disinherited from their large estate if he had anything further to do with the plaintiff; that continuously over a number of years up to the present time the defendants maliciously and wickedly conspired against the plaintiff by using their influence over the son to bring about, and did bring about, the loss of affection of the plaintiff's husband towards her, and that without any just or proper cause the defendants, maliciously and from hatred and ill will toward the plaintiff, alienated the affections of her husband, and deprived the plaintiff of the society, comfort, affection, and support of her husband, to her great loss and damage; that as a consequence of said alienation of her husband's affections and her abandonment by him, she is destitute of any means of support except what she may herself earn, and has sustained great humiliation and mental agony.

To this declaration the defendants filed three pleas: First, that they did not commit the wrongs alleged; second, that the alleged cause of action did not accrue within three years before this suit; and, third, that this court ought not to take cognizance of the offense in the aforegoing declaration specified, because, while protesting that they did not commit the wrongs alleged, and are not guilty of the same, nevertheless any action which the plaintiff has for any wrongs alleged to be done by the defendant should be brought in the state of West Virginia where the defendants reside and where occurred any of the claims which the plaintiff alleges she has against these defendants. The plaintiff joined issue on the first and second pleas and demurred to the third plea. The record does not disclose the ruling of the court on the demurrer to the plea to the jurisdiction, and we assume this plea was abandoned. It could not properly be considered, for several reasons: First, because, being a plea in abatement or dilatory plea, it cannot be joined with the general issue plea or plea to the merits; and, second, because it was not verified by affidavit. 1 Poe's Pl. (Tiff. Ed.) § 600; Chapman v. Davis, 4 Gill, 176; Cruzen v. McKaig, 57 Md. 459; Spencer v. Patten, 84 Md. 421, 35 A. 1097; Waggaman v. Nutt, 88 Md. 275, 41 A. 154; Sheppard v. Graves, 14 How. 505, 14 L.Ed. 518; Baltimore & O. R. Co. v. Harris, 12 Wall. 65, 20 L.Ed. 354; Glenn v. Williams, 60 Md. 93; Carroll v. Bowen, 113 Md. 154, 77

A. 128; Code, art. 75, § 28, subsec. 84. The plea of limitations was made the subject of the defendants' eighth prayer, which is: "The defendants by their counsel pray the Court to instruct the jury that even if they believe from the evidence that the defendants by their conduct alienated the affections of Walter L. Miller from the plaintiff, and that said alienation resulted in the loss of consortium between the plaintiff and her said husband for more than three years before the bringing of this suit, then the plaintiff is not entitled to recover in this case, and the verdict of the jury shall be for the defendants." This prayer was specially excepted to on the ground that there was no evidence in the case to support it. The special exception was sustained and the prayer rejected. There was no error in this ruling, because the loss of consortium occurred, if at all, within three years before the institution of the suit; there being no evidence whatever that it occurred prior to that time. The gist of this action is the loss of society, affection, assistance, and conjugal fellowship or consortium of the husband. The first instant of time at which the plaintiff could institute an action of this kind would be immediately after the society, affection, and conjugal fellowship, usually combined and expressed by the term "consortium," is lost. The limitation runs from such time, and has no reference to the words or acts alleged to have been the cause of such loss. Annarina v. Boland, 136 Md. 365, at page 379, 111 A. 84; 30 C.J. 1128; 37 C.J. 898; 13 R. C. L. 1463, § 511; Bockman v. Ritter, 21 Ind.App. 250, 52 N.E. 100.

The case was submitted to the jury, and at the close of the whole evidence the court granted a prayer directing a verdict in favor of the defendant John L. Miller, and refused a similar prayer for a directed verdict in favor of the defendant Flora M. Miller. The verdict and judgment was against the defendant Flora M. Miller. This action resulted in the two appeals which are contained in this record. In No. 31 the appellant is the plaintiff below, and her contention is that the lower court erred in directing a verdict for the defendant John L. Miller, and that there was no error in refusing the prayer directing a verdict in favor of the defendant Flora M. Miller. The contention of the appellant in No. 32, Flora M. Miller, is the reverse; she contending that the prayer instructing a verdict in her behalf should have been granted.

There are certain undisputed facts contained in the record which we shall briefly state, as they have an important bearing on the question under consideration, and these will be thus stated before examining the controverted facts, which, if sufficient to sustain a verdict for the plaintiff against either or both of the defendants, should have been submitted to the jury for its determination and solution. The undisputed facts are that the plaintiff, a native of Pennsylvania, came to Cumberland Md., in 1914 and entered Western Maryland Hospital to pursue studies and receive instruction which would qualify her as a graduate trained nurse; that she completed the training in 1917, shortly after which she became acquainted with her husband, Walter L. Miller, the only son of the defendants, they having one other child, a daughter; that this relationship ripened into mutual love and affection and culminated in their marriage on June 13, 1918; that this marriage took place in Pennsylvania, at the home of the plaintiff's parents, and was not made known to the defendants until their return to Cumberland; that the husband, Walter L. Miller, entered the Army in July, 1918, and...