Fernandez v. Fernandez

• Decision Date: 15 November 1957
• Docket Number: No. 45,45
• Citation: 214 Md. 519,135 A.2d 886
• Parties: Helen A. FERNANDEZ v. Richard R. FERNANDEZ.
• Court: Maryland Court of Appeals

Page 519

214 Md. 519

135 A.2d 886

Helen A. FERNANDEZ v. Richard R. FERNANDEZ.

No. 45.

Court of Appeals of Maryland.

Nov. 15, 1957.

Gordon C. Marray, Baltimore (Martin V. B. Bostetter and John S. Hollyday, Hagerstown, on the brief), for appellant.

No appearance for appellee.

Before BRUNE, C. J., and COLLINS, ^* HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

A wife living apart from her husband sued in replevin to recover certain of her chattels that he held, and damages for their detention. The trial court sustained the husband's demurrer to the declaration on the ground that the wife could not sue her husband at law, but must go into equity to obtain the return of the property. The appeal is from the judgment for the husband for costs.

Replevin is an action ex delicto founded upon a tortious detention of chattels, for which damages may be allowed. Despite the passage in 1898 of the Married Women's Act, Code, 1951, art. 45, Sec. 5 (hereinafter sometimes called 'the Act') which authorizes married women to engage in business, to contract, to sue on their contracts and for the recovery and protection of their property and for torts committed against them as fully as if unmarried, Maryland has held that the wife could not sue her husband, a partnership of which he was a member, or his employer, for a personal tort. Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534; David v. David, 161 Md. 532, 157 A. 755, 81 A.L.R. 1100; Riegger v. Bruton Brewing Co., 178 Md. 518, 16 A.2d 99, 131 A.L.R. 307; Tobin v. Hoffman, 202 Md. 382, 96 A.2d 597. The wife argues earnestly that this rule should not apply to actions at law for the protection and recovery of property rights, even though the form of action is technically in tort. She cites authorities in other States as establishing a general rule that a wife may sue her husband at law for torts against her property interests, and that she may do so in replevin, the recovery of damages being regarded as so incidental to the main purpose of the action as not to constitute a bar. There is no doubt that the authorities generally hold as she contends. 27 Am.Jur., Husband and Wife, Sec. 599; Prosser, Torts (2nd Ed.), Sec. 101 at 672; Notes v. Snyder, 55 App.D.C. 233, 4 F.2d 426, 41 A.L.R. 1052; 109 A.L.R. 882.

The cases in Maryland have interpreted the Act with such strictness and have given it such limited effect that we find ourselves unable to follow the authorities elsewhere without overruling our prior decisions, despite the sppeal to reason and convenience that the rule urged upon us has. The Furstenburg, David and Riegger cases held explicitly 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. In holding that it did not authorize a suit at law by a wife against her husband for a personal tort, they said its purpose was not to enable her to maintain suits that she could not have maintained before its passage but only to bring in her own name those which before she must have brought in her husband's name either alone or as party plaintiff with her. See, too, 1 Poe, Pleading and Practice (Tiff. Ed.), Sec. 441A. The extent to which this Court has limited the application of the Act is emphasized in Gregg v. Gregg, 199 Md. 662, 665, 667, 87 A.2d 581, 582. There, a woman separated from her husband brought suit against him for monies she had expended for necessaries after he had deserted her. The lower court sustained a demurrer without leave to amend, and this Court affirmed. Chief Judge Marbury said for the Court: 'There was no right in a married woman to sue her husband at common law, and, therefore, any right which she has in this respect must be conferred upon her by statute.' He pointed out that in the Furstenburg case this Court (a) followed the decision of the Supreme Court in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, which construed a practically identical statute as not authorizing suit at law by a wife against her husband for personal tort, and (b) found fortification for its conclusion in the Act of 1900 (Code, 1951, art. 45, Sec. 20, which authorizes a married woman to contract with her husband as fully as if she were unmarried, and to sue and be sued upon such a contract), because the later act would have been wholly superfluous if the Legislature had intended in the Act, passed two years earlier, to authorize a wife to sue her husband for breach of contract. Judge Marbury went on in the Gregg case to review the argument made in the David case, which the appellant here makes, that where the parties are separated no harm would be done to the marriage if the bringing of suit at law were allowed, saying that: '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.' The Court concluded in the Gregg case that the Legislature had authorized a wife to sue her husband only on a contract with him and that she could not sue him on a contract to which she was subrogated.

It is clear that a wife may sue her husband in equity for the preservation or protection of her property rights. Cochrane v. Cochrane, 139 Md. 530, 534, 115 A. 811; Smith v. Smith, 211 Md. 366, 127 A.2d 374. The Cohrane case was a suit in equity by a wife against her husband for an accounting and for delivery to her of money, securities and other property. It was held that the suit could be maintained. A headnote of the case says: 'A married...