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ALBERT v. MCGRATH

July 31, 1958

Earshlie I. ALBERT, Plaintiff,
v.
Margaret C. McGRATH



The opinion of the court was delivered by: TAMM

The present action is a suit filed by Mrs. Earshlie I. Albert against the defendant, Mrs. Margaret C. McGrath. The complaint is set forth in two counts -- count one charging the defendant with having alienated the affections of the plaintiff's husband, Mr. Albert, and count two charging the defendant with having had criminal conversation with Mr. Albert.

At the close of the plaintiff's case, the defendant moved for a directed verdict as to both counts of the complaint. This Court took the motion under advisement and required the defendant to offer her evidence. At the conclusion of all of the evidence, the defendant renewed her motion to dismiss, and the Court acting under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., continued the motion under advisement. After instruction to the jury, both issues were submitted to the jury. The jury returned a verdict on count one of the complaint in favor of the plaintiff in the sum of $ 5,000.00 but found for the defendant as to count two of the complaint. Thereafter, the defendant filed a motion for judgment n.o.v. to which the plaintiff filed objection, and hearing was waived on this motion.

 The defendant sets forth two contentions in support of her motion for a directed verdict as to count one of the complaint. Her first contention is that as a matter of law this action for alienation of affections cannot be maintained because the law of Maryland is the governing law, and that state has abolished such an action. Annotated Code of Maryland, Art. 75C. Her second point is that the plaintiff has not shown that the 'loss of consortium' which is the gist of such an action was caused by the defendant.

 Regarding her first point, defendant's argument is briefly this: The plaintiff and her husband were residents of Maryland at the time the alleged alienation of affections took place; the plaintiff has maintained her residence in Maryland to the present; and, the injury or damage complained of did not occur in the District of Columbia but rather in Maryland, which, as stated above, was the site of the home of the plaintiff and her husband. Defendant argues that since the basis for such an action is loss of consortium, this injury could occur only at the marital domicile and thus, the law of the marital domicile should apply. As previously pointed out, an application of Maryland law to the present situation would deprive this plaintiff of a cause of action for alienation of affections.

 As stated previously, the gist of such an action is loss of consortium. Chief Justice Shepard in the case of Dodge v. Rush, 28 App.D.C. 149, at page 152 wrote the following:

 'The gist of the action for the alienation of affections is said to be the loss of consortium -- that is, the loss of the conjugal fellowship, company, cooperation, and aid of the husband or wife. Loss of consortium is the actionable consequence of the injury, and alienation of affections is a matter of aggravation.'

 The theory of such an action as this was originally the loss of services:

 'For it was presumed that by the reduction or alienation the wife's services were rendered less valuable. But whatever may have been the principle, originally, upon which this class of action was maintained, it is certain that the weight of modern authority bases the action on the loss of consortium; that is, the society, companionship, conjugal affections, fellowship and assistance.' (Madden on Persons and Domestic Relations, p. 166).

 'The husband's interest in his relation with his wife first received recognition as a matter of her services to him as a servant. Over a period of some centuries it took form as something considerably broader than this, which was given the name of 'consortium'. Consortium was said to be made up of a bundle of legal rights to the alliterative trio of the services, society and sexual intercourse of the wife. To these elements the modern law has added a fourth, that of conjugal affection. The rights of a husband extend to all four; and while it is seldom that the defendant's conduct interferes with only one of them, it now seems clear in nearly all jurisdictions that such interference with any one will be sufficient as a foundation for the action. The loss of services essential at the beginning, no longer is indispensable and is now only one element upon which the action may be based.' Law of Torts, Prosser, p. 683.

 Continuing at page 691:

 '* * * and in virtually all states, the wife is now given the same rights and remedies as the husband, either by specific statutes or by a more liberal interpretation of the Married Women's acts in recognition of social changes.'

 The basic problem involved in the present case is one of conflicts of laws. The action is maintainable in the District of Columbia but has been abolished in the state of Maryland. Thus, it becomes necessary to determine which body of law is to govern the facts in this case. The factual basis for the existence of this conflict problem is that the acts or wrongs that effected the alienation took place in the District of Columbia, while the injury or damage, according to the defendant, took place in Maryland.

 The general rule of law applicable in conflict situations in tort actions is stated in Orr v. Sasseman, ...


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