Lusby v. Lusby

Decision Date19 July 1978
Docket NumberNo. 167,167
Citation283 Md. 334,390 A.2d 77
PartiesDiana R. LUSBY v. Gerald Lee LUSBY et al.
CourtMaryland Court of Appeals

Theodore L. Mast, Lanham (Bill L. Yoho, Stephen H. Kiefert, Martin C. Dennis, Robert S. Hoyert and Hoyert & Yoho, Lanham, on the brief), for appellant.

Joseph H. Rouse, Glen Burnie, for appellee.


SMITH, Judge.

We shall here hold that under the facts and circumstances of this case, amounting to an outrageous, intentional tort, a wife may sue her husband for damages a holding which represents somewhat of a departure from the earlier decisions of this Court.

Appellant, Diana R. Lusby (the wife), brought an action in the Circuit Court for Prince George's County against John Doe, Richard Roe, and Gerald Lee Lusby (the husband). She alleged that while she was operating her motor vehicle on a public highway the husband "pulled alongside of (her) in his pick-up truck and pointed a highpowered rifle at her." She attempted to flee by increasing the speed of her car. She claimed that then "another truck occupied by two (2) men, whose identities are unknown to (her) and who, (t)hereinafter are referred to (in the declaration) as John Doe and Richard Roe, cut and forced her off the road, nearly causing a collision." (Counsel for the wife directed that no summons be issued for Messrs. Doe and Roe until such time as specific directions were received from counsel. Summons has never been issued.) After she stopped her car, the husband "approached her automobile with a rifle pointed at her, opened her left door, ordered her to move over, forced his way into the automobile and began to drive the automobile." They were followed by Doe in the husband's truck and Roe in the second truck. Thereafter, the wife "was forced to enter (the husband's) truck with (the husband) and Richard Roe." John Doe drove the wife's vehicle and the second truck was left parked. She alleged that her husband then struck her, "tore (her) clothes off and did forcefully and violently, despite (her) desperate attempts to protect herself, carnally know (her) against her will and without her consent." She further claimed that, with the aid and assistance of her husband, both Doe and Roe attempted to rape her. She said that following those events her husband "and his two companions released (her) and (her husband) told (her) that he would kill her if she informed anyone of the aforesaid events; and that he has continued to harass and threaten (her)."

The husband demurred to the declaration on several grounds including the fact that the parties were married at the time and that, notwithstanding Maryland Code (1957, 1971 Repl.Vol., 1975 Cum.Supp.) Art. 45, § 5, Maryland "law is unequivocal . . . that a husband and a wife, as the case may be, may not sue the other for a tort committed by the other upon and/or against his or her person; this is a principle that dates from the common law." The circuit court judge who considered the matter overruled the demurrer, saying that "(n) o facts (were) asserted (in the declaration) leading to the conclusion that plaintiff and defendant are in any way related."

The husband then adopted another tactic. He filed a motion raising preliminary objection pursuant to Maryland Rule 323, pointing specifically to Rule 323 a 5 providing that lack of legal capacity to sue on the part of the plaintiff is a defense which constitutes grounds for a motion raising preliminary objection. 1 He then asserted "(t)hat since the Plaintiff and Defendant were lawfully married on February 16, 1976, (the date of the alleged incident,) the Plaintiff does not have the legal capacity to sue her husband." Another trial judge granted that motion and a judgment for costs was entered against the wife in favor of the husband. An appeal was then filed to the Court of Special Appeals. We granted certiorari prior to the consideration of the appeal by that court.

The disabilities formerly existing insofar as women are concerned are difficult for those of us of the present generation to fully comprehend. 2 It seems hard to believe that prior to the adoption of the 19th Amendment of the Constitution of the United States in 1920 women were not permitted to vote in Maryland and many other states. Prior to the enactment of Chapter 399 of the Acts of 1902 they were not permitted to practice law in Maryland. See In Re Maddox, 93 Md. 727, 50 A. 487 (1901). Deeds are to be found among the land records of some of our counties in which acknowledgments appear referring to the examination of the wife out of the presence of her husband by the person taking the acknowledgment.

Judge Richard Grason in Barton v. Barton, 32 Md. 214, 224 (1870), is authority for the fact that at common law "a debt due by the husband to the wife for money lent before marriage, became extinguished by the marriage." In that case he said for the Court:

"(P)ublic policy, originating in the delicate relation existing between husband and wife, forbids a wife from maintaining an action at law against her husband during the coverture, and her only remedy against him is by a proceeding in equity." Id. at 224.

In David v. David, 161 Md. 532, 534, 157 A. 755, 756 (1932), Judge Offutt said for the Court, "The rule at common law is that a married woman cannot maintain an action against her husband for injuries caused by his negligent or tortious act. 30 C.J., 'Husband and Wife,' §§ 317, 675." He went on to say, referring to the same citation and also to Philips v. Barnet, 1 Q.B.D. 436 (1876), that "(t)he reason usually given for that rule is the presumed legal identity of the husband and wife . . .." Background for this is found in 1 W. Blackstone, Commentaries some 200 years ago:

"By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and Cover, she performs everything; and is therefore called in our law-french a Feme-covert, foemina viro co-operta ; is said to be Covert-baron, or under the protection and influence of her husband, her Baron, or lord; and her condition during her marriage is called her Coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage." Id. at * 442 (italics in original).

He adds, in discussing the consequences of this union of husband and wife, "If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant." Id. at * 443.

It is hard to comprehend in this day and age that in an earlier time a husband had a right to give "correction" to his wife. Blackstone states:

"The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife, Aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet. The civil law gave the husband the same, or a larger, authority over his wife: allowing him, for some misdemeanors, Flagellis et fustibus acriter verberare uxorem (to beat his wife severely with scourges and cudgels); for others, only Modicam castigationem adhibere (to use moderate chastisement). But with us, in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehavior.

"These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favorite is the female sex of the laws of England." Id. at * 444-45.

Our laws relative to women were completely revised by Chapter 457 of the Acts of 1898. Maryland Code (1957, 1971 Repl. Vol., 1977 Cum.Supp.) Art. 45, § 5 reads today exactly as it was enacted in 1898 except for amendments in 1973 and 1975 not relevant to this proceeding. That section provides in pertinent part:

"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, and 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."

Two years later the General Assembly added what is now Code (1957) Art. 45, § 20:

"A married woman may contract with...

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