Ennis v. Donovan

• Decision Date: 10 June 1960
• Docket Number: No. 244,244
• Citation: 161 A.2d 698,222 Md. 536
• Parties: Sidney B. ENNIS v. William H. DONOVAN.
• Court: Maryland Court of Appeals

Page 536

222 Md. 536

161 A.2d 698

Sidney B. ENNIS v. William H. DONOVAN.

No. 244.

Court of Appeals of Maryland.

June 10, 1960.

John W. T. Webb, Salisbury, and Alexander G. Jones, Princess Anne (Edgar A. Jones and Jones & Jones, Princess Anne, on the brief), for appellant.

Thomas S. Simpkins, Princess Anne (Lloyd L. Simpkins and Simpkins & Simpkins, Princess Anne, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

On June 30, 1958, William H. Donovan was operating a motor vehicle in a southerly direction on U. S. Route 13, a public highway, in Somerset County, and his wife was accompanying him as a passenger.

Sidney B. Ennis was driving his car in an opposite direction, and the two vehicles collided. Mrs. Donovan died a few days thereafter allegedly as a result of injuries received in the collision.

Suits were instituted against Ennis in the Circuit Court for Somerset Courty, all alleging that his negligence caused the accident, without any negligence by either Mr. or Mrs. Donovan contributing thereto: one (1) was by Donovan as administrator of his wife's estate; one (2) by Donovan, individually, for his personal injuries and damages to his car; and another (3) by the State to the use of Donovan under the provisions of Code (1957), Article 67.

In case (2) above, Ennis filed general issue pleas and a counterclaim against Donovan. The case has not been tried, and is not involved in this appeal.

In cases (1) and (3), Ennis filed general issue pleas and third-party claims, pursuant to Rule 315, which alleged that Donovan, 'is or may be liable to this defendant (Ennis) for all or a part of the plaintiff's said claim.' Demurrers were filed to both of the third-party claims on the ground that at the time of the alleged tortious act of the third-party defendant, he and the deceased, Mary J. Donovan, were husband and wife; and, being thusly related, the wife could not have sued him had she lived, nor can her personal representative sue the surviving husband, as there is no civil right of action for personal injury between husband and wife during coverture. The trial court sustained the demurrers in both cases, without leave to amend, and Ennis has appealed. No procedural question is raised by the appellant.

It will be noted that one case is based upon Code (1957), Article 93, Section 112; the other upon Article 67 of the same Code. Section 112 provides that administrators, 'shall have full power to commence and prosecute any personal action whatever * * * which the testator or intestate might have commenced and prosecuted, except actions of slander * * *,' and Article 67, Section 1, states that whenever the death of a person shall be caused by wrongful act, neglect or default, and 'the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the vessel or person who would have been liable if death had not ensued, * * * shall be liable to an action for damages, * * *.' (Italics supplied.) Due to the similarity of the italicized portions of the statutes, the two cases may be considered together.

The appeal turns upon whether or not Mrs. Donovan, the plaintiff's decedent, could have 'maintain[ed] an action and recover[ed] damages' against the third-party defendant, her husband, on account of his negligent operation of his automobile. This is so because the right if any, of Ennis, the defendant, to contribution from Donovan, the third-party defendant, is a derivative right and not a new cause of action. Baltimore Transit Co. v. State, 183 Md. 674, 679, 39 A.2d 858, 156 A.L.R. 460; Zaccari v. United States, D.C.Md., 130 F.Supp. 50, 51, 52; Yellow Cab Co. of D. C. v. Dreslin, 86 U.S.App.D.C. 327, 181 F.2d 626, 19 A.L.R.2d 1001. There was, of course, no common-law right to contribution among joint torfeasors, Baltimore Transit Co. v. State, supra. In Maryland, this right is conferred by Code (1957), Article 50, Sections 16-24. Section 16 provides that joint tortfeasors 'means two or more persons jointly or severally liable in tort for the same injury to person or property'; consequently, in accordance with our above statement, we must determine whether the third-party defendant would have been 'liable' to his wife for his negligence had she lived. As stated by Judge Henderson for the Court in the Baltimore Transit Co. case, supra [183 Md. 674, 679, 39 A.2d 860]: 'We think these provisions make it clear that the Act [Uniform Contribution Among Tort-Feasors Act] is only applicable to a situation where there is a common liability to an injured person in tort. * * * there can be no contribution where the injured person has no right of action against the third-party defendant.' ¹

This brings us to a consideration of the pivotal question in the appeal. The appellant concedes that 'at common law there is no right in a married woman to sue her husband in tort.' He argues, however, that the underlying reason for the rule, namely, 'that it would introduce into the home, the basic unit of organized society, discord, suspicion and distrust' is not present in the instant case as Mr. Donovan is dead; and, therefore, the rule should not be applied. As pointed out in 43 A.L.R.2d at page 651, the Courts, in adhering to, or rejecting, the common-law rule of spousal immunity from personal injury action because of the husband-wife relationship, have given various reasons for their holdings; but the difference in result, usually, is due to an interpretation of the applicable married women's acts. It would therefore, be of little use to discuss elaborately the ruling of the Courts elsewhere. ²

A case in Pennsylvania, Johnson v. Peoples First Nat. Bank & Trust Co., 394 Pa. 116, 145 A.2d 716, stated the rule in that state was that one spouse could not maintain an action during coverture against the other spouse to recover damages for personal injuries, but permitted a widow to maintain a suit against her deceased husband's personal representative for damages resulting from the alleged negligent operation of a motor vehicle. The Court stated, as the reasons for its holding, that when the tort of a husband visits injury upon his wife, it results in a cause of action, but that public policy--the preservation of domestic peace and felicity--prevents the enforcement of the right of action; and death having terminated the marriage, domestic harmony and felicity would suffer no harm from the allowance of the enforcement of the cause of action. Cf. Schubert v. August Schubert Wagon Co., 1928, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293.

Maryland, however, has adhered to what is the majority view in this country, i. e., that at common law the wife had no cause of action against her husband for negligent personal injury, and our so-called Married Women's Act [Code (1957), Article 45, Section 5] conferred no such right. Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534. In that case, the Court followed the construction given by the Supreme Court of the United States to an almost identical statute of the District of Columbia. Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180.

The Furstenburg case was followed by David v. David, 161 Md. 532, 157 A. 755, 756, 81 A.L.R. 1100, wherein it was held that the rule extended so as to prevent such suits by a wife against a partnership of which her husband was a member. In that case, Judge Offutt, for the Court,...