Furstenburg v. Furstenburg

• Decision Date: 28 January 1927
• Docket Number: 89.
• Citation: 136 A. 534,152 Md. 247
• Parties: FURSTENBURG v. FURSTENBURG.
• Court: Maryland Court of Appeals

136 A. 534

152 Md. 247

FURSTENBURG v. FURSTENBURG.

No. 89.

Court of Appeals of Maryland

January 28, 1927

Appeal from Circuit Court, Allegany County.

"To be officially reported."

Action by Clara Belle Furstenburg against George M. Furstenburg. From a judgment for defendant, plaintiff appeals. Affirmed.

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

Taylor Morrison, of Cumberland (William A. Gunter, of Cumberland, on the brief), for appellant.

Arthur W. Machen, Jr., of Baltimore, and Fuller Barnard, Jr., of Cumberland (Alexander Armstrong, John Henry Lewin, and Armstrong, Machen & Allen, all of Baltimore, on the brief) for appellee.

URNER J.

The declaration in this case alleges that the plaintiff, while riding with the defendant in his automobile, at his invitation, was seriously injured as the result of the defendant's negligence in allowing the car to run against the guard wall of a concrete culvert at the side of the public highway on which they were traveling. For the injury thus suffered substantial damages were claimed. The defendant filed the general issue plea to the declaration, and a second plea stating:

"That at the time of the commission of the alleged wrongs in the declaration mentioned 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; and that the defendant and 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."

To this plea the plaintiff demurred. The court below overruled the demurrer, and, the plaintiff declining to reply, judgment for costs was entered in favor of the defendant, from which the plaintiff has appealed.

It is certain that the common law did not permit such an action to be maintained. The question is whether the right of the wife to sue her husband for personal injuries is conferred by the Maryland statute (Act of 1898, c. 457, § 5; Code, art. 45, § 5), which provides:

"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 sued separately upon their contracts, whether made before or during marriage, or 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."

A practically identical federal statute, applying to the District of Columbia, was construed by the Supreme Court of the United States in a suit by a wife against her husband for assault and battery (Thompson v. Thompson, 218 U.S 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L. R. A. [ N. S.] 1153 21 Ann. Cas. 921); and it was held that the statute did not authorize the action. The court said: "At the common law the husband and wife were regarded as one, the legal existence of the wife during coverture being merged in that of the husband; and, generally speaking, the wife was incapable of making contracts, of acquiring property or disposing of the same without her husband's consent. They could not enter into contracts with each other, nor were they liable for torts committed by one against the other. In pursuance of a more liberal policy in favor of the wife, statutes have been passed in many of the states looking to the relief of a married woman from the disabilities imposed upon her as a feme covert by the common law. Under these laws she has been empowered to control and dispose of her own property free from the constraint of the husband, in many instances to carry on trade and business, and to deal with third persons as though she were a single woman. The wife has further been enabled by the passage of such statutes to sue for trespass upon her rights in property, and to protect the security of her person against the wrongs and assaults of others. * * *

In construing a statute the courts are to have in mind the old law and the change intended to be effected by the passage of the new. Reading this section, it is apparent that its purposes, among others, were to enable a married woman to engage in business and to make contracts free from the intervention or control of the husband, and to maintain actions separately for the recovery, security, and protection of her property. At the common law, with certain exceptions, not necessary to notice in this connection, the wife could not maintain an action at law except she be joined by her husband. Barber v. Barber, 21 How. 582, 589, 16 L.Ed. 226, 228. For injuries suffered by the wife in her person or property, such as would give rise to a cause of action in favor of a feme sole, a suit would be instituted only in the joint name of herself and husband. 1 Cooley, Torts (3d Ed.) 472, and cases cited in the note.

By this District of Columbia statute the common law was changed, and, in

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