Lusby v. Lusby

Smith, J., delivered the opinion of the Court. We shall here hold that under the facts and circumstances of this case, amounting to an outrageous, intentional tort, a wife may sue her husband for damages — a holding which represents somewhat of a departure from the earlier decisions of this Court. Appellant, Diana R. Lusby (the wife), brought an action in the Circuit Court for Prince George's County against John Doe, Richard Roe, and Gerald Lee Lusby (the husband). She alleged that while she was operating her motor vehicle on a public highway the husband “pulled alongside of [her] in his pick-up truck and pointed a highpowered rifle at her.” She attempted to flee by increasing the speed of her car.

She claimed that then “another truck occupied by two (2) men, whose identities are unknown to [her] and who, [t]hereinafter are referred to [in the declaration] as John Doe and Richard Roe, cut and forced her off the road, nearly causing a collision.” (Counsel for the wife directed that no summons be issued for Messrs. Doe and Roe until such time as specific directions were received from counsel. Summons has never been issued.) After she stopped her car, the husband ³³⁶ “approached her automobile with a rifle pointed at her, opened her left door, ordered her to move over, forced his way into the automobile and began to drive the automobile.” They were followed by Doe in the husband’s truck and Roe in the second truck. Thereafter, the wife “was forced to enter [the husband’s] truck with [the husband] and Richard Roe.” John Doe drove the wife’s vehicle and the second truck was left parked.

She alleged that her husband then struck her, “tore [her] clothes off and did forcefully and violently, despite [her] desperate attempts to protect herself, carnally know [her] against her will and without her consent.” She further claimed that, with the aid and assistance of her husband, both Doe and Roe attempted to rape her. She said that following those events her husband “and his two companions released [her] and [her husband] told [her] that he would kill her if she informed anyone of the aforesaid events; and that he has continued to harass and threaten [her].” The husband demurred to the declaration on several grounds including the fact that the parties were married at the time and that, notwithstanding Maryland Code (1957, 1971 Repl. Yol., 1975 Cum. Supp.) Art. 45, § 5, Maryland “law is unequivocal... that a husband and a wife, as the case may be, may not sue the other for a tort committed by the other upon and/or against his or her person; this is a principle that dates from the common law.” The circuit court judge who considered the matter overruled the demurrer, saying that “[n]o facts [were] asserted [in the declaration] leading to the conclusion that plaintiff and defendant are in any way related.” The husband then adopted another tactic.

He filed a motion raising preliminary objection pursuant to Maryland Rule 323, pointing specifically to Rule 323 a 5 providing that lack of legal capacity to sue on the part of the plaintiff is a defense which constitutes grounds for a motion raising preliminary objection. 1 He then asserted “[t]hat since the Plaintiff and ³³⁷ Defendant were lawfully married on February 16,1976, [the date of the alleged incident,] the Plaintiff does not have the legal capacity to sue her husband.” Another trial judge granted that motion and a judgment for costs was entered against the wife in favor of the husband. An appeal was then filed to the Court of Special Appeals. We granted certiorari prior to the consideration of the appeal by that court. The disabilities formerly existing insofar as women are concerned are difficult for those of us of the present generation to fully comprehend. 2 It seems hard to believe that prior to the adoption of the 19th Amendment of the Constitution of the United States in 1920 women were not permitted to vote in Maryland and many other states.

Prior to the enactment of Chapter 399 of the Acts of 1902 they were not permitted to practice law in Maryland. See In Re Maddox, 93 Md. 727 , 50 A. 487 (1901). Deeds are to be found among the land records of some of our counties in which acknowledgments appear referring to the examination of the wife out of the presence of her husband by the person taking the acknowledgment. Judge Richard Grason in Barton v. Barton, 32 Md. 214, 224 (1870), is authority for the fact that at common law “a debt due by the husband to the wife for money lent before marriage, became extinguished by the marriage.” In that case he said for the Court: “[P]ublic policy, originating in the delicate relation existing between husband and wife, forbids a wife from maintaining an action at law against her husband during the coverture, and her only remedy against him is by a proceeding in equity.” Id. at 224 .

In David v. David, 161 Md. 532, 534 , 157 A. 755 (1932), Judge Offutt said for the Court, “The rule at common law is that a married woman cannot maintain an action against her husband for injuries caused by his negligent or tortious act. 30 C.J., ‘Husband and Wife, ’ secs. 317, 675.” He went on to ³³⁸ say, referring to the same citation and also to Philips v. Barnet, 1 Q.B.D. 436 (1876), that “[t]he reason usually given for that rule is the presumed legal identity of the husband and wife____” Background for this is found in 1 W. Blackstone, Commentaries some 200 years ago: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.” Id. at ⁴⁴² (italics in original). He adds, in discussing the consequences of this union of husband and wife, “If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant.” Id. at ⁴⁴³. It is hard to comprehend in this day and age that in an earlier time a husband had a right to give “correction” to his wife.

Blackstone states: “The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the ³³⁹ husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet. The civil law gave the husband the same, or a larger, authority over his wife: allowing him, for some misdemeanors, flagellis et fustibus acriter verberare uxorem [to beat his wife severely with scourges and cudgels]; for others, only modicam castigationem adhibere [to use moderate chastisement].

But with us, in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehavior. “These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favorite is the female sex of the laws of England.” Id. at ⁴⁴⁴-45. Our laws relative to women were completely revised by Chapter 457 of the Acts of 1898. Maryland Code (1957,1971 Repl.

Vol., 1977 Cum. Supp.) Art. 45, § 5 reads today exactly as it was enacted in 1898 except for amendments in 1973 and 1975 not relevant to this proceeding. That section provides in pertinent part: “Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue upon their contracts, and also to sue for the recovery, security or protection of their property, and for torts committed against them, as fully as if they were unmarried; contracts may also be made with them, and they may also be ³⁴⁰ sued separately upon their contracts, whether made before or during marriage, and for wrongs independent of contract committed by them before or during their marriage, as fully as if they were unmarried; and upon judgments recovered against them, execution may be issued as if they were unmarried; nor shall any husband be liable upon any contract made by his wife in her own name and upon her own responsibility, nor for any tort committed separately by her out of his presence, without his participation or sanction.” Two years later the General Assembly added what is now Code (1957) Art. 45, § 20: “A married woman may contract with her husband and may form a copartnership with her husband or with any other person or persons in the same manner as if she were a feme sole, and upon all such contracts, partnership or otherwise, a married woman may sue and be sued as fully as if she were a feme sole.” In Furstenburg v. Furstenburg, 152 Md. 247 , 136 A. 534 (1927), the Court was concerned with a suit by a wife against her husband for injuries sustained in an automobile accident. It was suggested that Art. 45, § 5 permitted such an action.

The Court referred to Thompson v. Thompson, 218 U. S. 611 , 31 S. Ct. 111 , 54 L. Ed. 1180 (1910), in which the Supreme Court had construed a similar District of Columbia statute. Our predecessors quoted liberally from the Supreme Court’s opinion. That Court said, “The statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which at common law must be brought in the joint names of herself and husband.” 218 U. S. at 617 . It stated that “[i]n no act called to [its] attention ha[d] the right of the wife been carried to the extent of opening the courts to complaints of the ³⁴¹ character of the one [tjhere involved,” the action being one for assault.

The Supreme Court then said: “It must be presumed that the legislators who enacted this statute were familiar with the long-established policy of the common law, and were not unmindful of the radical changes in the policy of centuries which such legislation as is here suggested would bring about. Conceding it to be within the power of the legislature to make this alteration in the law, if it saw fit to do so, nevertheless such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention. Had it been the legislative purpose not only to permit the wife to bring suits free from her husband’s participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing, differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness.” 218 U. S. at 618 . Our predecessors found themselves “fortified ... by an indication in the enactment and provisions of a later statute,” referring to the present § 20, as indicating that § 5 “was not intended to be as broad and unqualified” as was suggested to the Court by the appellant there.

Judge Urner said for the Court that the present § 20 “would have been a wholly superfluous act if the Legislature had understood and intended that under the Act of 1898 a wife was entitled to sue her husband for breach of contract.” The Court concluded that “the purpose of the Act of 1898 [was] to give the wife a remedy, by her suit alone, for actionable wrongs which could not theretofore be thus independently redressed,” saying that an “intention to create, as between husband and wife, personal causes of action, which did not exist before the act, [was] not, in [the Court’s] opinion, expressed by its terms.” ³⁴² The issue was next before the Court in David v. David, supra, 161 Md. 532 , when a wife sustained personal injuries on business premises in Baltimore City and sued the owners, a partnership of which her husband was a member. There Judge Offutt said for the Court: “The same dictates of public policy which have been held to preclude persons who stand in the relation of husband and wife from suing each other individually in tort would also prevent either of them from maintaining such an action against a partnership of which the other was a member, nor is the vestigial legal identity of the husband and wife remaining after the Married Women’s Act, which the court in Furstenburg v. Furstenburg, supra, recognized as sufficient to prevent an action in tort by a wife against her husband, affected by the fact that the husband is sued only as a member of a partnership.” Id. at 588. In Riegger v. Brewing Company, 178 Md. 518 , 16 A. 2d 99 (1940), the wife sought to sue her husband’s employer on the theory that he stood responsible for her husband’s negligence. Relying upon David , the Court said this was not permissible.

In David the Court referred to: “[t]he adoption of legislation which has had the effect of partially dissipating [the] fiction [of the presumed legal identity of the husband and wife], by permitting suits between husband and wife to enforce contractual liabilities, by according to. each the same rights and privileges in respect to property they would have if unmarried, by permitting the wife to carry on a trade or business, and to receive and enjoy her earnings from any source as freely as if single, and to sue in her own name for torts against her.” 161 Md. 534 -35. The Court then referred to the fact that “there ha[d] been a determined effort to have [such legislation] construed so as ³⁴³ to permit actions between husband and wife for damages resulting from some wrongful or negligent act of the defendant, and in some jurisdictions it ha[d] been so construed [, citing cases,] usually on the ground that, with the disappearance of the fiction of identity, the reason for the rule denying persons in the relation of husband and wife the right to sue each other in tort ceased.” The Court then said: “But that view has been rejected by what seems to be the weight of authority, not only upon the technical and artificial ground that the identity of husband and wife persists in its original vigor until it has been completely dissolved by express legislative mandate, in respect to all matters which the Legislature has not expressly included within the meaning of the emancipatory statutes, but upon the broader sociological and political ground that it would introduce into the home, the basic unit of organized society, discord, suspicion and distrust, and would be inconsistent with the common welfare.” Id. at 535 (emphasis added). In Gregg v. Gregg, 199 Md. 662 , 87 A. 2d 581 (1952), after a wife had successfully sued for permanent alimony and counsel fees but failed to obtain reimbursement of sums expended by her for necessaries, she brought a suit at law against her husband for what she claimed to have expended for necessaries subsequent to his desertion but before her alimony suit was filed. A demurrer to the declaration was sustained without leave to amend.

This Court affirmed, concluding that, absent an “express mandate from the Legislature to that effect,” it was powerless to permit the recovery which was sought, and if “this omission should be repaired, it is for the Legislature, and not for us, to act.” In the course of the opinion Chief Judge Marbury quoted for the Court from that portion of David above set forth, adding the emphasis which appears above. He then said: “This last ground is as artificial as the first. It applies to a post-bellum situation a theory which is clearly only applicable to conditions prior to the ³⁴⁴ difficulty which caused the bringing of the legal action. After discord, suspicion and distrust have entered the home, it is idle to say that one of the parties shall not be allowed to sue the other because of fear of bringing in what is already there.

However, these ancient theories which form a part of the common law have to be followed by us unless they have been changed by legislative action, and the clear import of the decision in the David case is that the emancipatory statutes must be strictly construed. The Legislature has not amended or changed this emancipatory legislation since 1931, when the David case was decided.” Id. at 666-67 . Tobin v. Hoffman, 202 Md. 382 , 96 A. 2d 597 (1953), involved an application of District of Columbia law. However, Chief Judge Sobeloff said for the Court at 391, “It is clear that Maryland will not entertain a suit by one spouse against the other for his or her tort, committed during the marital status,” citing Furstenburg and David .

In Fernandez v. Fernandez, 214 Md. 519 , 135 A. 2d 886 (1957), a wife, living apart from her husband, sued in replevin to recover certain chattels. Judge Hammond referred for the Court to Furstenburg, David, and Riegger and their explicit holding “that the Act did no more than authorize a married woman to prosecute suits at law in her own name as if unmarried against a third person.” However, although refusing to permit such an action at law because of those prior decisions unless they were to be overruled, the Court acknowledged that “[t]he literal language of the Act authorizes both [a right to sue her husband for tort against her person) and [a right to sue him for a tort against her property interest], as well as a right to sue him in-contract.” The suit was remanded for transfer to the equity side of the docket, with the comment that in such situations a spouse “must proceed in equity until the Legislature sees fit to change the law.” The issue was again before the Court in Ennis v. Donovan, 222 Md. 536 , 161 A. 2d 698 (1960). In that instance a surviving ³⁴⁵ husband brought suit against the operator of a vehicle allegedly responsible for the death of his wife. The defendant filed a third-party claim against the husband to which demurrers were filed because the third-party action could only be maintained if the wife could have sued her husband had she lived.

After reviewing our prior cases, Judge Prescott said for the Court: “From what we have said above, it is seen that this Court has flatly held that a married woman had no common-law right to sue her husband for injuries suffered by her as the result of his negligence, and, the Legislature has not yet seen fit to grant her such a right. It has also stated that if this disability is to be removed, it must be done by the law-making branch of the government. We can only repeat that if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts.” Id. at 542-43 . In Hudson v. Hudson, 226 Md. 521 , 174 A. 2d 339 (1961), the Court was faced with the issue of whether a wife might maintain an action against her husband to recover for personal injuries allegedly sustained as a result of his negligent operation of a motor vehicle prior to their marriage.

Judge Prescott again reviewed our prior cases and said for the Court, “we feel impelled to follow our previous decisions (and the great majority of jurisdictions elsewhere) and to hold that the wife’s cause of action was extinguished upon her marriage to the defendant----” The issue was last considered by this Court in Stokes v. Taxi Operators Assn., 248 Md. 690 , 237 A. 2d 762 (1968), where a wife, a paying passenger in a taxicab operated by her husband, sought to recover from his employer for the injuries she sustained as the result of her husband’s negligent operation of the cab. The Court found Riegger, 178 Md. 518 , to be controlling. It said that there was a split of authority on the question, with the jurisdictions allowing recovery in such situations exemplified by Schubert v. Schubert Wagon ³⁴⁶ Co., 249 N. Y. 253 , 164 N. E. 42 (1928), and Fields v. Synthetic Ropes, Inc., 215 A. 2d 427 (Del. 1965). 3 It said in the jurisdictions which deny recovery Riegger is one of the leading cases. In response to a contention that the Court “should now follow the rationale of the Schubert case and either overrule or distinguish the Riegger case,” the Court pointed to Fernandez, Ennis, and Hudson and said it “decline[d] to change the rule,” that any change must come from the General Assembly.

At the time this problem was before the Court in Stokes , there were but few decisions in which courts had abolished the common law doctrine of interspousal tort immunity. See, e.g., Self v. Self, 58 Cal. 2d 683 , 26 Cal. Rptr. 97 , 376 P. 2d 65 (1962) (abolishing such immunity as to intentional torts), followed by Klein v. Klein, 58 Cal. 2d 692 , 26 Cal. Rptr. 102 , 376 P. 2d 70 (1962) (completely abolishing such immunity); Lorang v. Hays, 69 Idaho 440 , 209 P. 2d 733 (1949) (as to an intentional tort); Apitz r.

Dames, 205 Ore. 242 , 287 P. 2d 585 (1955) (husband had shot and killed his wife; immunity abolished limited to the facts in that case); and Goode v. Martinis, 58 Wash. 2d 229 , 361 P. 2d 941 (1961) (limited to an intentional tort committed by one spouse against the other during the pendency of previously initiated divorce proceedings when the parties are legally separated). Cases relative to the subject generally are collected and analyzed in Annot., 43 A.L.R.2d 632 (1955), and its various supplements. Since this Court’s decision in Stokes in 1968 there has been a parade of cases in which courts have altered the previous common law rule. See, e.g., Rogers v. Yellowstone Park Company, 97 Idaho 14 , 539 P. 2d 566 (1974) (auto negligence cases); Brooks v. Robinson, 259 Ind. 16 , 284 N.E.2d 794 (1972) (doctrine abrogated for all cases); Moulton v. Moulton, 309 A. 2d 224 (Me. 1973) (wife permitted to sue husband for tort occurring prior to marriage); Lewis v. Lewis, 370 Mass. 619 , ³⁴⁷ 351 N.E.2d 526 (1976) (Wife sued husband as a result of an automobile accident).

Justice Reardon said for the court: “We conclude therefore that it is open to this court to reconsider the common law rule of interspousal immunity and, having done so, we are of opinion that it should no longer bar an action by one spouse against another in a case such as the present one. We believe this result is consistent with the general principle that if there is tortious injury there should be recovery, and only strong arguments of public policy should justify a judiciaiiy created immunity for tortfeasors and bar to recovery for injured victims.” Id. at 629 , 351 N.E.2d at 532 . The Massachusetts court expressly “limit[ed its] holding . . . to claims arising out of motor vehicle accidents.”); Beaudette v. Frana, 285 Minn. 366, 373 , 173 N.W.2d 416 (1969) (“We hold that the absolute defense of interspousal immunity in actions for tort is abrogated prospectively, as to all causes of action arising after this date, and is abrogated as to the instant cases.”); Rupert v. Stienne, 90 Nev. 397 , 528 P. 2d 1013, 1017 (1974) (doctrine of interspousal immunity abrogated as “to claims arising out of motor vehicle accidents”); Merenoff v. Merenoff, 76 N. J. 535, 388 A. 2d 951 (1978) (The court said: “[W]e recognize that there still remain situations wherein,