Lubowitz v. Taines

• Decision Date: 03 January 1936
• Citation: 293 Mass. 39,198 N.E. 320
• Parties: LUBOWITZ v. TAINES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 39

198 N.E. 320

LUBOWITZ

v.TAINES.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 3, 1936.

Exceptions from Superior Court, Essex County; Dillon, Judge.

Tort action by Hilda Lubowitz against Benjamin J. Taines. The action was dismissed, and plaintiff brings exceptions.

Exceptions overruled.

H. W. Sullivan and R. E. Casey, both of Boston, for plaintiff.

D. H. Fulton, of Boston, for defendant.

CROSBY, Justice.

The plaintiff, while a passenger in an automobile operated by the defendant, was injured as a result of a collision with another automobile. She brought an action against the defendant claiming gross negligence. Before the case was reached for trial the plaintiff married the defendant. After the jury was impaneled it was agreed by counsel in open court that the plaintiff had married the defendant, whereupon the defendant filed a motion to dismiss the action. The motion was allowed and the plaintiff excepted.

G.L.(Ter.Ed.) c. 209, § 6, provides: ‘A married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife.’ The rights of married women respecting the making of contracts and the maintenance of actions thereunder, including the right to bring actions of tort, have been greatly enlarged by statute subject to the limitations whereby contracts and suits at law between husband and wife are not permitted. Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890,4 L.R.A.(N.S.) 643, 114 Am.St.Rep. 605,6 Ann.Cas. 658;Gahm v. Gahm, 243 Mass. 374, 137 N.E. 876, and cases therein cited. In the case of Lord v. Parker, 3 Allen, 127, it was held that a married woman could not form a partnershipwith her husband, and was not liable upon a promissory note given by a firm of which, by partnership articles, she and her husband agreed to be members. It was said by this court in that case, 3 Allen, 127, at page 130: ‘How such suits could be conducted, with the incidents in respect to discovery, the right of parties to testify, and to call the opposite party as a witness, without interfering with the rule as to private communications between the husband and wife, it is not easy to perceive. * * * We cannot suppose that an alteration in the law involving such momentous results, and a change so redical, could have been contemplated by the legislature, without a much more direct and clear manifestation of its will.’ Cases where a married woman has been allowed to assign to others after the death of her husband contract rights against the husband, are not pertinent in considering rights of action for tort between husband and wife. In Butler v. Ives, 139 Mass. 202, 29 N.E. 654, where a husband advanced money to his wife for the benefit of her separate estate, and she made a promissory note payable to A or bearer and executed to A as security there for a mortgage on land, and A assigned the mortgage to the husband and delivered the note to him, and afterwards during the life of the wife the husband assigned the note and mortgage to B who entered to foreclose and brought a writ of entry, against a person claiming under the wife, to recover possession of the land, it was held by this court that the writ could be maintained. In discussing the statute (G.L. c. 209,...