Hudson v. Hudson

• Decision Date: 19 October 1961
• Docket Number: No. 38,38
• Citation: 174 A.2d 339,226 Md. 521
• Parties: Eleanor Lee Easel HUDSON, etc., et al. v. Donald V. HUDSON.
• Court: Maryland Court of Appeals

Page 521

226 Md. 521

174 A.2d 339

Eleanor Lee Easel HUDSON, etc., et al. v. Donald V. HUDSON.

No. 38.

Court of Appeals of Maryland.

Oct. 19, 1961.

Patrick L. Rogan, Jr., Salidsbury (Vaughn E. Richardson and Richard M. Pollitt, Salisbury, on the brief), for appellants.

Walter C. Anderson and William W. Travers, Salisbury (Webb & Travers and K. King Burnett, Salisbury, on the brief), for appellee.

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

PRESCOTT, Judge.

Two appeals have been brought here in one record. The appellant Eleanor J. Easel instituted two suits in the Circuit Court for Wicomico County: one (the infant's suit) as the mother and next-friend of her infant daughter, Eleanor Easel Hudson, for personal injuries to said infant; the other (the mother's suit) in her individual capacity, for reimbursement for necessary expenditures for doctors, hospital, and other medical expenses incurred by the mother.

The infant's suit alleged negligence on the part of the appellee in the operation of a motor vehicle, in which the infant was a guest passenger, with resultant injuries to the infant. It further alleged that she was unmarried at the time of her injuries, but, subsequently, had married the appellee; facts that are conceded in both suits. The declaration in her suit contained two counts, but the only one involved in this appeal is the first. The mother's suit alleged the negligence of the appellee, resulting injuries to said infant, and that she, the mother, had become obligated to expend large sums of money for doctors, and for hospital and medical expenses.

The trial court sustained demurrers, without leave to amend, to the narrs in both cases, upon the theory that the subsequent marriage of the said infant and the appellee barred the mother and the infant daughter from maintaining suits against the appellee-husband.

I

We shall first consider whether in Maryland a wife may maintain an action against her husband for negligent personal injuries, suffered by the wife as the result of a premarital tort committed by the husband. The wife's argument to the effect that the answer should be in the affirmative is briefly stated, thus: the tort having been committed prior to coverture, a cause of action did arise and accrue in her; and, even though she concedes that her subsequent marriage to the tort-feasor would, under the common law of Maryland, prevent or bar her from enforcing the cause of action, she is, nevertheless, specifically authorized and empowered to maintain and enforce her said cause of action by the provisions of Code (1957), Article 45, Section 5. ¹

We do not consider an extended or elaborate discussion of the same necessary, for the answer, we think, is to be found in our previous decisions, (wherein the objectives and effect of Section 5 have been treated quite fully--some of the decisions being of very recent vintage) although not under the precise state of facts as those presented here. In accordance with her presentation of her case, as we have set it forth above, our only inquiry is whether said Section 5 conferred upon her the right to sue her husband in tort.

The previous decisions of this Court have held, flatly, that the purpose of Section 5 in stating that the wife could sue for a tort committed against her and on her contracts was to give her no additional rights, except to sue alone where formerly she must have sued jointly or in the name of another, and that it did not confer upon her the right to sue her husband for a tort committed against her person by her husband or on a contract with her husband. Section 5, enacted in 1898, first came before the Court in Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534, where a wife sued her husband for personal injuries resulting from his negligent operation (during coverture) of an automobile. The Court pointed out that it was certain the common law did not permit such an action, and then followed the leading case of Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, by holding that Section 5 did not confer upon the wife the right to make her husband a defendant in such litigation. Judge Urner, who wrote the opinion, went on to say the conclusion of the Court was fortified by the provisions of Section 20 of Article 45, passed two years after Section 5, wherein the wife was given, inter alia, the right to contract with her husband and to sue upon such contracts as fully as if she were a feme sole, pointing out that Section 20 would have been a totally superfluous enactment if the Legislature had intended that a wife, under Section 5, could sue her husband for breach of contract.

This holding by the Court has been consistently followed: David v. David, 161 Md. 532, 157 A. 755, 81 A.L.R. 1100, holding that a woman could not sue a partnership of which her husband was a member for a personal tort; Riegger v. Bruton Brewing Co., 178 Md. 518, 16 A.2d 99, 131 A.L.R. 307, ² holding that a woman could not sue her husband's employer for a personal tort committed by the husband; Gregg v. Gregg, 199 Md. 662, 87 A.2d 581, holding that a woman separated from her husband could not maintain an action against him (neither under Section 5, nor Section 20) for monies expended by her for necessaries; Fernandez v. Fernandez, 214 Md. 519, 135 A.2d 886, ruling that a wife, living apart from her husband, could not sue him at law in replevin; and Ennis v. Donovan, 222 Md. 536, 161 A.2d 698, holding that a defendant in a suit by a husband as the administrator of his deceased wife could not maintain a third-party claim against the husband, who was driving the automobile in which the decedent was riding at the time it collided with defendant's motor vehicle, because the decedent could not have maintained an action against her husband on account of his alleged negligent operation of his automobile. Although there is a minority view, and perhaps a growing one, to the contrary, Maryland has followed what is still the majority and prevailing rule upon the subject. Prosser on Torts (2nd Ed.), 670, 673; 43 A.L.R.2d 636. Some of the Maryland cases cited above pointed out that in certain jurisdictions the courts have held that a cause of action arose in the wife, even where the tort occurred during coverture, but the marriage prevented her from enforcing the same; but, in Maryland, if the tort occurred when the parties were husband and wife, no right of action arose in the wife.

The only feature of the instant case that has not been specifically passed upon by our prior decisions is that the alleged wrong occurred before the marriage of the parties. It is generally held, in jurisdictions that deny a spouse the right to sue the other spouse for personal injuries, that the disability obtains, notwithstanding that the wrong for which recovery is sought was a premarital one. Dean Prosser states ³ that some two-thirds of the courts which have considered the emancipatory statutes have refused and still refuse, to construe the same so as to alter the common-law rule; that it is the prevailing view that neither spouse may maintain an action against the other for negligent injuries; and this is true even though the tort was committed before the marriage of the parties. For a collection of some of the cases so holding, see Annotation, 43 A.L.R.2d 642. It has been held that a spouse cannot maintain such an action even where the wrong was committed, and action brought, before marriage. ⁴

There can be little doubt that a wife could not, at common law, sue her husband for personal injuries inflicted upon her person before marriage, the rule being usually stated that the marriage extinguished her right of action. 41 C.J.S. Husband and Wife § 396; 27 Am.Jur., Husband & Wife, § 589; and casesthere cited. As we have so definitely and flatly held that neither Section 5 nor any other statute that has been called to our attention has removed the spousal disability, we fell impelled to follow our previous decisions (and the great majority of jurisdictions elsewhere) and to hold that the wife's cause of action was extinguished upon her marriage to the defendant, and, consequently, the trial court was correct in sustaining the demurrer to her declaration.

II

We now reach a consideration of the mother's case. She does not make any claim of damages for loss of services, but limits her demand to doctors' bills, and medical and hospital expenses that she has become obligated to pay as a result of the injuries to her infant daughter, from the date of said injuries to the time of the daughter's marriage. We have stated briefly the allegations of her declaration. In addition to the allegations that we previously set forth, contributory negligence on the part of the infant was negatived. The appellee does not contest the fact that the infant's father is dead, or claim that the daughter had been emancipated before her marriage, but contends that the mother's claim is founded upon the same breach of duty as that sued on by the minor and is merely a part of the dauther's cause of action; that when a cause of action is split up, each part 'stands upon the same basis,' and is subject to the same defenses; and, since it is essential for the mother to show that her right to compensation flows from an injury for which, under the law, the infant is entitled to recover, and the infant's right to recover has been extinguished by her marriage to the appellee, the mother's claim has, likewise, been barred and she cannot recover. Stated a little differently and more concisely, the appellee argues that the mother's claim is subject to any and every defense that can be made to a claim by the daughter for her personal injuries, and her marriage to the appellee constitutes a good defense against any demand of the daughter; hence said marriage is a legal bar to the mother's suit.

We proceed to analyse these contentions. There can be no doubt that the mother...