Riegger v. Bruton Brewing Co.

• Decision Date: 31 October 1940
• Docket Number: 18.
• Citation: 16 A.2d 99,178 Md. 518
• Parties: RIEGGER v. BRUTON BREWING CO.
• Court: Maryland Court of Appeals

16 A.2d 99

178 Md. 518

RIEGGER v. BRUTON BREWING CO.

No. 18.

Court of Appeals of Maryland

October 31, 1940

Appeal from Court of Common Pleas of Baltimore City; J. Abner Sayler, Judge.

Personal injury action by Edith M. Riegger against the Bruton Brewing Company. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Daniel S. Sullivan, Jr., and Symone S. Spector, both of Baltimore for appellant.

J Nicholas Shriver, Jr., of Baltimore, for appellee.

Argued before PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

JOHNSON, Judge.

Is a husband's employer liable to an employee's wife for injuries sustained by her as the result of her husband's negligence while acting within the scope of his employment? This question, which the parties to this appeal agree was raised before the lower court and by that tribunal answered in the negative must now be determined by this Court for the first time, and is raised by this appeal of the plaintiff below from a judgment entered by the trial court after sustaining, without leave to amend, the demurrer of the appellee (defendant below) to appellant's declaration.

At the outset it is proper to state that the authorities in many jurisdictions of the United States where the question has arisen are conflicting and the adjudications sustaining liability rest in many instances upon different grounds. In some states liability has been declared to exist because of legislative enactments that were held to have removed the common law disabilities of the wife. Thus in Alabama Connecticut, New Hampshire, West Virginia, and Wisconsin a wife may maintain a direct action against her husband for injuries sustained through his negligence. In a Florida case (Webster v. Snyder, 103 Fla. 1131, 138 So. 755), the reason for the decision is not clear, while in Massachusetts (Pittsley v. David, 298 Mass. 552, 11 N.E.2d 461) Mississippi (McLaurin v. McLaurin Furniture Company, 166 Miss. 180, 146 So. 877), and Missouri (Mullally v Langenberger Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645), where the question seems to have been answered affirmatively, an examination of the opinions discloses that the cases were won on other grounds, hence the decision was not necessary nor indeed controlling.

There are, however, decisions in many states answering the question in the affirmative. See Schubert v. Schubert Wagon Company, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; Miller v. J. A. Tyrholm & Co., 196 Minn. 438, 265 N.W. 324; Cerruti v. Simone, 179 A. 257, 13 N.J.Misc. 466; Broaddus v. Wilkenson, 281 Ky. 601, 136 S.W.2d 1052; Koontz v. Messer, 320 Pa. 487, 181 A. 792; Poulin v. Graham, 102 Vt. 307, 147 A. 698; and Restatement Law of Agency, Section 217, comment 'b'.

Of the last cited authorities perhaps that of Schubert v. Schubert Wagon Company, supra, is most often quoted. That decision affirmed the ruling of the Appellate Division which is reported in 233 A.D. 502, 228 N.Y.S. 604, 609. An examination of the last mentioned opinion discloses that it was based upon the court's conception of 'economic and social welfare' principles to the effect that 'any loss to the employer should be treated as a business expense.' It was added that the cost of production should be borne by society in general.

The New York Court of Appeals in an opinion by Chief Judge Cardozo rejected the holding of the highest Courts of Iowa, Michigan and Nebraska, stating that under its Domestic Relations Law, Consol.Laws c. 14, § 57, a married woman had a right of action for personal injuries against her husband's employer and the disability of spouses to maintain an action against each other was an exception engrafted upon that rule 'by authority and tradition.' [249 N.Y. 253, 164 N.E. 43, 64 A.L.R. 293.] It was further stated that the argument for non-liability to the wife of the husband's employer for negligence of the husband was to confuse culpability with liability. Such a contention, however, avoids the fact that liability and not culpability is the true basis for the doctrine of respondeat superior. United Transportation Company v. Jefferies, 211 Ind. 226, 5 N.E.2d 524; White v. International Textbook Company, 150 Iowa 27, 129 N.W. 338; Loveman Company v. Bayless, 128 Tenn. 307, 160 S.W. 841, Ann.Cas.1915C, 187; Blaen Avon Coal Company v. McCulloh, 59 Md. 403, 43 Am.Rep. 560.

The argument for liability upon the basis of the weight of authority rests mainly upon the above cited decisions, plus the further fact that it is supported by the Restatement. Such an argument loses much force when the decisions are closely examined, since they follow the reasoning of Schubert v. Schubert Wagon Company, supra, holding (a) that in some of the States married women's acts permit such actions, or (b) that the common law is archaic, or (c) that the Restatement (Sec. 217, Comment 'b'), which apparently follows the Cardozo decision, correctly states the law.

In Maryland, our married women's acts have not been interpreted as entirely abrogating the common law. See Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534 and David v. David, 161 Md. 532, 157 A. 755, 81 A.L.R. 1100.

Prof. Casner, annotating the Restatement of the Law of Agency, Section 217, Comment 'b', while conceding that this Court has not extensively discussed the problem, states that indications from existing decisions are 'in accord' with the principles of the Restatement (Md. Anno., Restatement Law of Agency, page 123), but the decisions cited and discussed by him would not seem to justify his conclusion, for generally speaking they are assault and battery cases involving railroad companies and in all of them, this Court held it to be the duty of the Trial Court to determine whether the servant was acting solely as a police officer or solely as a servant of the carrier. See Baltimore & O. R. R. Co. v. Deck, 102 Md. 669, 62 A. 958; Tolchester Co. v. Scharnagl, 105 Md. 199, 65 A. 916; Baltimore, C. & A. R. Co. v. Twilley, 106 Md. 445, 67 A. 265, and Baltimore, C. & A. R. R. Co. v. Ennalls, 108 Md. 75, 69 A. 638, 16 L.R.A.,N.S., 1100.

This Court in Furstenburg v. Furstenburg supra, construing Code, Art. 45, Sec. 5, held that a wife could not maintain an action against her husband for a personal tort. In that opinion, the decision of 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, construing a federal statute similar to our own was followed. In both cases the holdings were based upon a finding that such an action did not exist in favor of the wife at common law and her rights had not been so enlarged by statute as to permit the action.

Subsequently in David v. David supra [161 Md. 532, 157 A. 756, 81 A.L.R. 1100], we held that a married woman could not maintain an action to recover for personal injuries against a partnership of which her husband was a member. It was there said, '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. The reason usually given for that rule is the presumed legal identity of the husband and wife, Ibid, Philips v. Barnet (1876), 1 Q. B. D. 436, and some confusion has arisen from the adoption of legislation which has had the effect of partially dissipating that fiction, by permitting suits between husband and wife to enforce contractual liabilities, by according to each the same rights and privileges in respect to property they would have if unmarried, by permitting the wife to carry on a trade or business, and to receive and enjoy her earnings from any source as freely as if single, and to sue in her own name for torts against her. Coincident with the widening scope and extent of such legislation, there has been a determined effort to have it construed, so as to permit actions between husband and wife for damages resulting from some wrongful or negligent act of the defendant, and in some jurisdictions it has been so construed (Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A.L.R. 1031; Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, 187 S.W. 460, L.R.A.1917B, 774, Ann.Cas.1918C, 772; Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L.R.A.(N.S.) 185, Ann.Cas.1915D, 70; Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A.1916B, 907; Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1022, 52 L.R.A.(N.S.) 189), usually on the ground that with the disappearance of the fiction of identity, the reason for the rule denying persons in the relation of husband and wife the right to sue each other in tort ceased. But that view has been rejected by what seems to be 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.' It is thus observed that we have held,...