Gregg v. Gregg

• Decision Date: 04 April 1952
• Docket Number: No. 145,145
• Citation: 199 Md. 662,87 A.2d 581
• Parties: GREGG v. GREGG.
• Court: Maryland Court of Appeals

Page 662

199 Md. 662

87 A.2d 581

GREGG v. GREGG.

No. 145.

Court of Appeals of Maryland.

April 4, 1952.

Hugh J. Monaghan, II, Baltimore, for appellant.

E. Paul Mason, Jr., Baltimore, for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

Appellant is the wife of the appellee. She filed her bill in the Circuit Court No. 2 of Baltimore City, asking for permanent alimony and counsel fees, and for reimbursement of sums expended by her for necessaries. A demurrer filed to this bill was sustained, and thereupon it was amended, omitting the prayer for reimbursement for necessaries. Subsequently, after due proceedings, she was awarded $38 a month permanent alimony, and counsel fees. She brought a suit in the Baltimore City Court against her husband for $2,500 which she claimed she had expended for necessaries since her desertion by her husband, but before her alimony suit was filed. This sum she alleged her husband had not repaid her, although it was his duty to make proper provision for her. A demurrer to the declaration in this suit was sustained without leave to amend, whereupon she appealed here.

It is not contended that the appellant was entitled to have an order passed in the alimony case directing her husband to pay for these necessaries. Kriedo v. Kriedo, 159 Md. 229, 150 A. 720; Dougherty v. Dougherty, 187 Md. 21, 32, 48 A.2d 451; Blair v. Blair, Md., 85 A.2d 442. Indeed, the fact that the equity court has no power to pass such an order in retrospect is, according to the appellant, the reason why her remedy, if any, must be in a suit at law. The question therefore, is whether she can sue her husband in such a case.

The question of the obligation of a father for necessaries furnished his child was discussed in the case of Kriedo v. Kriedo, supra, and it was said in that case, which was a divorce proceeding, that this obligation was primarily to persons rendering the services in cases where such persons had not been paid, and in cases where the child's mother had paid for such services, she was entitled to reimbursement from the father, and her remedy was by a suit at law. In that case, however, the parties had been divorced before the necessaries were furnished, and the claim was for extraordinary expenses due to the illness and death of a child of the parties, which were not contemplated in the alimony granted. The situation is entirely different where the husband and wife are not divorced, and in this case we are called upon to decide whether a wife can sue her husband and not her former husband, where she has expended money for necessaries which it was his duty to furnish.

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. The first Maryland statute which removed many of the disabilities under which married women suffered was the Act of 1898, Chapter 457. Sec. 5 of that act, codified as Sec. 5 of Article 45 of the Code of Public General Laws, authorized married women to engage in business and to contract and to sue upon their contracts, and for the recovery and protection of their property, and for torts committed against them. The section was construed first in Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534. In that case, a woman sued her husband for damages for an injury sustained by her while riding with him in his automobile and as a result of his negligence. The court followed the Supreme Court of the United States in the case of Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, construing what it said was a practically identical federal statute applicable to the District of Columbia. In that case, by a divided court (Justices Harlan, Holmes and Hughes dissenting), the right of a wife to sue her husband for a tort was denied, and this court said that the Act of 1898 did not authorize such a suit. It said that this conclusion was fortified by the Act of 1900, Chapter 633, Sec. 19A, now condified in Article 45, Sec. 20, of the Code, which authorized a married woman to contract with her husband as if she was a feme sole, and to sue and be sued upon such contract. The court said that this later act would have been wholly superfluous if the Legislature had intended that by the Act of 1898, a wife was authorized to sue her husband for breach of contract. The court said that the Act of 1900 did not go beyond contractual matters, and that it did not give a wife any right to sue her husband for a personal tort, and that there had been no subsequent legislation.

This case was shortly followed by the case of David v. David, 161 Md. 532, 535, 157 A. 755, 756, 81 A.L.R. 1100, where a woman sued her husband and this partner because she fell through an elevator shaft on their property which they allegedly had left unguarded. The court said that the fiction of the legal identity of the husband and the wife had been partially dissipated by the adoption of legislation which permitted suits between them to enforce contractual liabilities. It said there had been a determined effort to have such legislation construed to permit actions between husband and wife for damages resulting from some wrongful or negligent act of the defendant, and that it had been so construed in some jurisdictions, such as Alabama, Arkansas, Connecticut, New Hampshire, and Oklahoma, but, it said, that view had been rejected by 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.' (Emphasis supplied.) 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 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.

It is suggested, however, that this is an action on a contract, and, while it is not a contract made directly with the husband (on which the wife is expressly given the right to sue by the Act of 1900), it is an implied contract of the husband to pay for necessaries upon which he could be sued by those furnishing them. Therefore, it is argued that the wife, by paying for these necessaries herself, has succeeded to, or become subrogated to, the rights of the parties furnishing the necessaries, and consequently she has a contract with her husband...