David v. David

• Decision Date: 13 January 1932
• Docket Number: 48.
• Citation: 157 A. 755,161 Md. 532
• Parties: DAVID v. DAVID ET AL.
• Court: Maryland Court of Appeals

157 A. 755

161 Md. 532

DAVID v. DAVID ET AL.

No. 48.

Court of Appeals of Maryland

January 13, 1932

Appeal from Baltimore City Court; Eli Frank, Judge.

Suit by Minnie B. David against Charles David and another copartners, trading as the Union Wall Paper Company. From the judgment for defendants, plaintiff appeals.

Affirmed.

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

Edward L. Ward, of Baltimore, for appellant.

Walter L. Clark and Clater W. Smith, both of Baltimore, for appellees.

OFFUTT J.

The appellant filed in the Baltimore city court a declaration against "Charles David and Samuel David, co-partners trading as Union Wall Paper Company," in which she alleged that the defendants operated at 7-9 E. Lombard Street in Baltimore City a wholesale paper business, and that on August 28th, 1929, while she was lawfully on their premises for business purposes and in the exercise of ordinary care she stepped and fell in an open elevator shaft which the defendants had negligently left unguarded unlighted and without "any warning or sign of any kind," and that in consequence of her fall she was severely injured. To that declaration the defendants filed the general issue plea and a special plea, in which they stated: "That at the time of the commission of the alleged wrongs mentioned in the declaration and for a long time prior thereto the plaintiff was and has ever since continued to be, and still is the lawful wife of the defendant Samuel David, and that the defendant Samuel David and the plaintiff at the time of the commission of said alleged wrongs and for a long time prior thereto were and have ever since continued to be and are now living together as husband and wife in lawful wedlock." Plaintiff's demurrer to that plea was overruled, and the plaintiff failing to reply within the time fixed by the court, a judgment of non pros, with costs to the defendants, was entered on May 12, 1931.

This appeal from that judgment presents two questions, one, whether the special plea which was not verified by affidavit was in abatement or in bar, and, two, whether a married woman is entitled to maintain an action against a partnership for damages resulting from injuries caused by defendants' negligence, when, at the time of the negligent act, her husband was a member of the partnership.

The distinction between a plea in abatement and a plea in bar is that the former delays the suit, while the latter destroys the cause of action. It is said, generally, that a plea in abatement, to be good, must tender a better writ, but a plea in bar denies that the writ should have issued at all. A plea, therefore, which sets up matter which has in law merely the effect of postponing the enforcement of the right alleged in the declaration is necessarily in abatement, because it does not destroy, but only suspends the right of action, but one which alleges facts which negative the existence of any right of action must be in bar. Bullen & Leake Prec. of Pl. 468 et seq.; Chitty on Pl. * p. 368 et seq., Tidd's pr. * 637, 638.

In examining the nature of the plea in this case, it may be noted that it sets up the coverture of the plaintiff as a defense in three aspects: (1) Coverture prior to the tort; (2) coverture at the time of the tort; and (3) coverture at the time of the suit. But if coverture at the time of the tort conclusively negatived the existence of any actionable quality in the tort, the allegations of coverture before and since the tort which sound in abatement are mere surplusage, and may be disregarded. So that the test of the nature of the plea is identical with the second question stated, which is whether if, at the time of the tort, the plaintiff's husband was a member of the partnership charged with it, any cause of action accrued to her in consequence of the injuries she suffered as a result of defendants' negligence.

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," §§ 317, 675. The reason usually given for that rule is the presumed legal identity of the husband and wife, Ibid, Philips v. Barnet, [1876] 1 Q. B. D. 436, and some confusion has arisen from the adoption of legislation which has had the effect of partially dissipating that fiction 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. Coincident with the widening scope and extent of such legislation, there has been a determined effort to have it construed, so as to permit actions between husband and wife for damages resulting from some wrongful or negligent act of the defendant, and in some jurisdictions it has been so construed (Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A. L. R. 1031; Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, 187 S.W. 460 L. R. A. 1917B, 774, Ann. Cas. 1918C, 772; Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70; Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L. R. A. 1916B, 907; Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1022, 52 L. R. A. (N. S.) 189), 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. 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. Thompson v. Thompson, 218 U.S. 616, 618, 31 S.Ct. 111, 113, 54 L.Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; 30 C.J. 955; Supplement vol. 4 Rose's Notes page 849. The question has however, been definitely put at rest in this state by the decision in Furstenburg v. Furstenburg, 152 Md. 247, 252, 136 A. 534, 536, in which the court, through Judge Urner, after construing Code, art. 45, §§ 5 and 20 said: "It appears to have been the purpose of the act of 1898 to give the wife a remedy, by her suit alone, for actionable wrongs which could not theretofore be thus independently redressed. The intention to create, as between husband and wife, personal causes of action which did not exist before the act is not, in our opinion, expressed by its terms." So that in this state, in an action by a married woman against her husband, based upon loss or damage occasioned by his negligent or wrongful act, her coverture at the time of the tort is a complete bar to the action, not because she was a married woman at the time of the tort, but because she was at that time married to the defendant. The effect of the Married Women's Acts in this state as construed in Furstenburg v. Furstenburg, supra, being merely to remove the disability which at common law prevented a married woman from suing in tort in her own name, but not to create in such cases as this a cause of action where none existed before.

Proceeding upon that principle, and assuming that the appellant could not have maintained this action against her husband had he been the sole defendant, the single remaining point is whether she can maintain it against a partnership of which he was a member at the time of the tort.

The reasons advanced in support of the wife's right to recover are: (1) That the defense of coverture is personal to the husband, and not open to the partnership; and (2) that the partnership is a distinct and independent legal entity. These two propositions are to an extent interdependent, for unless the partnership is a distinct entity, separate and apart from the husband, a sufficient answer to the first proposition would be that in this case the husband has...