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Blasio v. Kolodner

Decided: February 11, 1964.

DI BLASIO
v.
KOLODNER ET AL.



Appeal from the Circuit Court for Baltimore County; Menchine, J.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

In this suit for libel, the plaintiff, Di Blasio, appeals from separate judgments of the Circuit Court for Baltimore County in favor of the defendants, Kolodner and Rezek. The alleged libel was contained in a declaration filed in a prior suit (sometimes referred to below as the "original suit" or the "criminal conversation" or "crim. con." suit) brought by Rezek, through his attorney, Kolodner, against Di Blasio. Both judgments in the libel suit were based upon the privileged character of the publication -- that in favor of Kolodner, the attorney, being entered after his demurrer had been sustained, and that in favor of Rezek, the client, being entered upon his motion for summary judgment. The pleadings in the original suit have been incorporated in the record in this case, and a brief statement with regard to that suit is necessary to the consideration of the instant case.

The original suit by Rezek against Di Blasio, filed on July 27, 1961, contained three counts. Each of them contained an allegation that the defendant, Di Blasio, debauched and carnally knew the wife of Rezek, the plaintiff, and caused her to become pregnant. The first count was limited to such an allegation. The second count alleged Di Blasio's debauching and carnal knowledge of Rezek's wife with intent to injure Rezek and to deprive him of the society and assistance of his wife and to alienate and destroy her affection for him, that such results had followed, and that Di Blasio had caused Rezek's wife to become pregnant. The third count alleged that by "wrongful and wicked enticements, allurements and persuasions" Di Blasio had alienated the affections of Rezek's wife, that he had "wrongfully and maliciously" induced her to abandon Rezek's home for short periods of time, and that she was pregnant as a result of Di Blasio's debauching and carnally knowing her.

The defendant in the original suit (Di Blasio) first filed the general issue plea in September, 1961, and on December 29, 1961, he filed a motion for summary judgment. The grounds therefor here pertinent were in substance that the declaration on its face showed the suit to be for alienation of affections, that such a cause of action had been abolished by Art. 75 C of the Code,*fn1 and that the declaration was in violation of that Article. Rezek's answer to this motion was to the effect that the declaration stated a cause of action for criminal conversation and that such cause of action had not been abolished. Judge Menchine, of the Circuit Court, held that the torts of alienation of affections and of criminal conversation were separate wrongs and that a cause of action for the latter had not been abolished. He noted, however, that the declaration was "replete with language alleging alienation of affections, subject

matter now forbidden as a cause of action, which allegations are unnecessary, impertinent, scandalous, irrelevant and improper within the meaning of Rule 301 (i)." Pursuant to that Rule, the court on its own initiative ordered the plaintiff, Rezek, to file an amended declaration limited specifically to criminal conversation. This Rezek proceeded to do on May 24, 1962. He filed a second amended declaration on September 5, 1962, after a demurrer to the first amended declaration had been sustained (apparently on a ground not here important). Without reviewing in detail the subsequent pleadings, we note that a motion to dismiss filed by Di Blasio on October 4, 1962, was overruled by Judge Lindsay on October 18, 1962. At the time when this case came to us the original suit was still open on Rezek's claim for criminal conversation.

In the instant suit for libel which is based upon allegations contained in the original declaration filed in the criminal conversation case, the issue which we regard as controlling, as did Judge Menchine, is that of privilege. There were other issues in the trial court, and one of them -- whether the suit is premature -- is also sought to be raised here by the appellees. We find it unnecessary to pass upon any of those other issues. We shall assume, as did the trial court, that all of the allegations complained of were libelous, and we shall assume without deciding (the trial court so held) that this suit is not premature. No question of limitations is raised on appeal, and therefore none is before us. (Rezek did originally raise such a question in the trial court; Kolodner did not.) Likewise, no challenge to the validity of the statute is here involved and we express no opinion with regard thereto. Cf. the similar comment in Babb v. Bolyard, 194 Md. 603, at 608, 72 A.2d 13, a case which did not involve this statute and which seems to be the only prior case in this Court to mention it. For the purposes of this case, we shall assume its validity.*fn2

Because it is the most sweeping, we shall consider first the

appellant's contention that actions for criminal conversation as well as for breach of promise have been abolished by Ch. 1010 of the Acts of 1945, now incorporated in Art. 75 C of the Code, 1957 Ed., as now amended. These are §§ 1-6 and §§ 8-9, both inclusive (see note 1, supra), and they are collectively referred to herein as Art. 75 C. Section 1 of that Article recites abuses to which remedies for breach of promise to marry and for alienation of affections have been subjected, state that they have in many cases resulted in a perpetration of fraud, and ...


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