Boblitz v. Boblitz

LAURETTA BASEMAN BOBLITZ v. CHARLES

WILLIAM BOBLITZ Term, September [No. 1982.]

Decided June The cause argued was before Smith, Eldridge, Cole, Rodowsky JJ., and W. Albert Davidson, Couch, Judge Associate Special the Court of Appeals Menchine, (retired), specially assigned. appellant. for Callegary L. Claude Langan B.

Elena appellee. Gray Goudy F. J., opinion the Court. delivered

Menchine, Couch and J., Rodowsky, the result. concurs in Davidson, page JJ., Couch, J., dissenting opinion a dissent. filed J., infra, joins. in which Rodowsky, (hereafter sepa- Appellant), Baseman Boblitz

Lauretta (hereafter Appellee), Boblitz of William rated wife Charles Superior Court in against him the instituted suit tort, on action, sounding alleged that City. Baltimore The serious, painful and 26, Appellant sustained August negligence the the result of permanent injuries as of a motor vehicle. operation in the Appellee Summary Judg- course, a Appellee Motion for In due filed following upon facts: ment the Summary Judgment

"The moves Defendant dispute genuine ground on is no be- that there the fact that any and tween parties as to material as a matter of judgment to Defendant entitled is parties were says that the hereto law and for reason and and are husband on March married wife, to Defendant’s Plaintiffs Answers as witness 24 filed Interrogatories and No. No. No.

herein, action herein alleged cause of and that the marriage under extinguished by was said 521,174 Hudson, A. authority 226 Md. of Hudson v. (1961).” 2d facts,

The admitted the recited Appellant answer law, alleged disputed the and further conclusion of that 7,1980; a marital had not July resumed parties separated on date; hope that there was no relationship since a reconciliation. the circum- judge,

After as indeed under hearing, the trial prior do in the of our decision required stances he was face Hudson, summary supra, granted judgment below) (Defendant Appellee in an reading order follows: "DEFENDANT’S MOTION FOR SUMMARY HUDSON, JUDGMENT GRANTED. HUDSON V. (1961), LUSBY, 226 Md. 521 CITED IN LUSBY V. 283 Md. STILL APPEARS TO BE MARYLAND, LAW THE IN AT LEAST IT UNTIL IS ALTERED BY THE COURT OF APPEALS OR THE LEGISLATURE.”

Appellant timely filed appeal asking a us to reexamine the immunity rule that was the basis for decision Hudson, supra, longer declare that rule to be no viable in tort involving personal injury spouse resulting cases ato from negligence spouse. of the other rule,

The interspousal origin, of ancient creature exclusively of the common law that from resulted judicial decisions is thus described Blackstone:

"By marriage, per- the husband and wife are one is, very son in law: being legal that or existence of the woman is suspended during marriage, or at is incorporated least and that consolidated into of the husband: under wing, protection, whose and cover, she performs everything; is and therefore feme-covert, called in our a law-french foemina viro co-operta; covert-baron, is to be said or under the protection husband, baron, and influence of her her lord; or and her during marriage condition her called her Upon coverture. principle, this of a union person wife, of in husband and depend almost all duties, the legal rights, disabilities, and that either of acquire by 1, them the marriage.” Book Ch.

p. 442

"If injured the wife in person prop- be her or her erty, she can bring no action her for redress without concurrence, name, husband’s and in his as well as her own: neither can she be making sued without Id., p. husband a defendant.” immunity to this of the words Application more be mockery. It would on borders rule of law ancient Under women.” derogation of married in "a rule aptly called marriage came upon of a woman person property it the and — for husband of her influence” and "protection under the with fitted to his will and became subservient good or ill. She obeisance compelled and yoke servitude distasteful at crushing worst. best and galling was of this society the burden changed, in women’s role As increasingly intolerable inferiority became imputation of protest. increasing storm of an ever and led to reaching proportions hurricane protest, This storm Leg- Century, caused half of the Nineteenth the second Womens "Married to enact the several states islatures of Acts.” Act,” enacted

Maryland’s Womens "Married Code ofthe Annotated Section 5 now as Article is codified Maryland, reads as follows: and engage power shall have "Married women business, contract, engaged in whether any and to contracts, and not, upon their or and sue business security protection also to recovery, sue for or against committed property, their and for torts unmarried; contracts them, fully they if as as were them, they may also be may with also be made contracts, made their whether separately upon sued wrongs indepen- marriage, during before or during before or committed them dent of contract unmarried; they fully as if were marriage, their them, execu- against recovered upon judgments unmarried; nor they may be issued as if were tion any made contract any upon be liable shall husband own upon her name and his wife in her own sepa- tort committed responsibility, any nor for 1. Ch. 457 of Acts of 1898. of his

rately by her out without presence, par- his added) (Emphasis sanction.” ticipation or years Two Assembly later the General added what is now (1957) Code Art. Section 20:

"A may married woman contract with her hus- may band and form a copartnership with her hus- band or any person with other or persons sole, same manner as if she were a feme and upon contracts, all such partnership otherwise, or may married woman sue fully and be sued as if as she were a feme sole.” passage

The of Married Womens Acts in the several states produced soon litigation directed question to the of their meaning and effect.

The Supreme decision of the Court of the United States in Thompson Thompson, 218 U.S. 54 L. Ed. 1180 early was the bellwether for decisions interpreting Married Womens Acts.

In Thompson, Supreme Court upon was called to deter- mine whether the District of Columbia Act conferred upon a right wife the to maintain a tort action against her husband. The District of Columbia statute incorporated as in the (218 1181-82) Thompson opinion U.S. 54 L. Ed. at read as follows:

"Married women shall have power engage any business, contract, and to engaged whether not, business or and to sue separately upon their contracts, and also to separately sue for the recov- ery, security, protection or property, of their and for them, torts against committed fully freely as they unmarried; if were may contracts also be made them, with they may separately also be sued upon contracts, their whether made before or during marriage, and for wrongs independent of comparison quite 2. A Maryland similar District of Lusby, Columbia Lusby will Acts be found in Md. during their or before by them contract, committed unmarried; and they if were fully as as marriage, execution them against recovered judgments upon unmarried; nor shall they were ifas may be issued by made contract any upon liable be any husband respon- own her upon and name her own his wife separately committed tort any sibility, nor for or participation his without his presence, her out shall woman no married Provided, That sanction: guar- or surety as any contract to make power have drawer, acceptor, antor, accommodation or as added) (Emphasis maker, indorser.” or of218U.S.;p. 1182 of54 (atp. said: Court Supreme The Ed.) L. right a give

"The not intended to statute was wife, husband, allow the against action as but to which, name, maintain of tort her own actions law, joint brought must be in the names common of herself and husband. a

This think is obvious from construction we purpose reading light of the statute in the a reasonable sought accomplished. gives to be It used, accomplishes, as we effect to the terms believe, intent, primary legislative which is the object of all construction of statutes.

It is the liberal construction suggested plaintiff in error in this insisted for in behalf given, legislative might case well be view of provide grievous wrongs intent to remedies for wife; wrong suggested is in the an instance avocation of to a wife rendered unable follow the destroy a aby might seamstress cruel assault which arm; justice suggested or the use of hand and the might be giving remedy to an artist who great damages pecuniary maimed suffer injuries result of inflicted a brutal husband.

Apart perpetra- from the consideration that the wrongs adequate tion of such affords atrocious grounds for relief under the statutes of divorce and alimony, this would, time, construction at the same open the doors of the courts to accusations of all spouse sorts of one against other, and bring into public assault, notice complaints slander, for and libel, alleged injuries property of the one or other, the wife, husband against against or wife husband.”

The Court referring further to "alternative remedies” said:

"Nor is the remedy wife left without for such wrongs. may courts, She resort to the criminal which, it is to be presumed, punishment will inflict commensurate with the offense committed. She may sue for divorce or separation and for alimony. court, The in protecting rights her and awarding cases, relief consider, in such may and, so far as possible, wrongs protect redress her rights.” her p.At U.S.; p. 619 of 218 1183 of 54 L. Ed. point

at another opinion in the the Court page stated at 1182: "In no act called to right our attention has the of the wife been carried to the opening extent of the complaints courts to of the character of one the here involved.” by the suggested remedies” The available "alternative well-being a disabled wife ring. a hollow The of Court have is of her husband whose warrant causes the confinement widow surely thereby. is the disabled not advanced Nor alimony ends the the spouse aided when the death of her grounds for relief.” suggests adequate Court "affords dissenting Thompson, A of Harlan in opinion Justice Hughes joined, eloquently which Justices and Holmes 621-624 rejected every premise majority, saying pp. U.S.; of 218 1184-1185 of L. Ed.: pp. states Thompson, in ten of last resort courts 3. Since the decision infra.

have done so. See Footnote provisions, statutory these my opinion "In case as the construed, such a embrace properly lead to by Congress used If the words present one. be if, that result result, suggested, as

such it public policy, of grounds on undesirable to ward off of the court the functions within by a simply or evils threatened dangers feared will defeat judicial construction depart- legislative will plainly-expressed think, here, any I Now, as . is not ment. .. there construction, explicit so are room whatever mere Congress. us follow the clauses words of Let enables in their order. The statute the statute take, own, any property her married woman as her, as kind, as well acquired no matter how exertions, skill, labor, 'as personal avails her or ’It confers absolutely if unmarried. then she were any engage upon power women the married what, enter into business, and to no matter not, contracts, in or and engaged business whether If stat- contracts. the separately upon to those sue here, ground holding be for stopped ute there would But the statute it did not authorize this suit. that to married goes proceeds much It authorize farther. recovery, separately for the women 'also’ to sue more, still security, property; or of their protection may 'for torts committed they separately sue freely they if were them, as against fully as ’ made, either in unmarried. No discrimination is committing case, charged with persons between the to the exception is made in reference the tort. No husband, party charged with if he to be the happens bywife upon the transgressing rights the conferred words, Congress, by these stat- In the statute. other destroys unity marriage of the utory provisions, the a it existed. It makes previously association as had of man and wife as change radical the relations District. at common law this those relations were property, In the married respect of business and given control; woman is absolute in respect of the recovery, security, and protection property, of her tort, may she sue separately as if she were unmarried; herself, is, and in respect that of her person, may sue separately fully freely she as unmarried, if she were 'for torts committed against her.’ the I expressly So statute reads.... [Congress] cannot permit believe that to intended the tort, wife to sue the husband separately, in for recovery, detention, the including damages for the property, of her deny and at the same time her the right him, separately, a sue tort committed against person.... her

My say brethren feel constrained the present attempt, made, case illustrates often changes effect by radical in the common law mere contrary, construction. judgment just On have, will think, rendered as I the effect to defeat clearly expressed legislature by will construction of its words that cannot be reconciled ordinary with their meaning.

I opinion dissent from the judgment of the court, and am say authorized to that Mr. Justice Holmes and Mr. Hughes Justice concur in this dissent.”

There is early little doubt that litigation questioning the continuing viability interspousal immunity rule were strongly influenced decision in Thompson, supra, the Supreme Court of the United States.

The first Maryland upon decision question, Furstenburg v. 152 Md. 136 A. Furstenburg, (1927) cited exclusively and relied upon Thompson, supra, as its basis for decision. Maryland All down to cases Stokes v. Taxi Operators 4

Assn., 690, 248 Md. A. 762 237 2d continued to hold Furstenburg Furstenburg, 247, 136 (1927); 4. v. 152 Md. A. David v. 534 David, (1932); Brewing 532, Riegger Company, 161 Md. 157 A. 755 v. 518, 16 (1940); Gregg Gregg, 662, 87 Md. Fernandez v. (1952); A. 2d 99 v. 199 Md. A. 2d 581 Fernandez, (1957); Hudson, Md. Hudson v. 226 Md. 521, 174 (1961); Assn., Operators A. 2d 339 Stokes v. Taxi 248 Md. (1968). A. 2d 762 immunity doctrine remained viable interspousal that spouse. All ofthose by spouse against actions and barred tort in Marvin Smith of this Court Judge cases were discussed (1978). 334, 390 A. 2d 77 Lusby Lusby, v. 283 Md. Thompson, in opinion majority of the guidance

Under the initially sup- many in States of last resort supra, courts immunity doc- interspousal viability of the continued ported in of Ohio Supreme Court Indeed, as as 1965 the trine. late 1965) (Ohio declared, 533, 536-7 Lyons, 208 N.E. Lyons v. be purpose would a useful convinced that "This court is not immunity interspousal rule of overthrowing the served in in jurisdictions majority in a established from suit so well country.” this initially had con- however, that that courts

It is plain, by the troubled were of the doctrine support tinued in Abramson, 513 S.W.2d Klein v. earliest decisions. (Mo. 1974). upon Court of this opinions in decisions The

App. concerning misgivings we had that the issue demonstrate Furstenburg to from holdings our in the line of cases Stokes.5 that have indicated Judges of this Court

Distinguished decision. reasoning of its earliest they were troubled 662, 666, 2dA. 582-83 Gregg, 199 Md. Gregg In validity (1951), Marbury questioned the Judge then Chief Thompson, supra, reasoning Thompson in of the rejected abrogation had early decisions that "[U]pon the technical and immunity doctrine: interspousal and wife identity of husband ground artificial that vigor completely until it has been original persists its mandate, respect to all by express legislative dissolved included Legislature expressly has not matters which the statutes, meaning emancipatory upon but within the of the collectively Maryland contained citations decisions cases Those Maine, California, Iowa, Maryland position: supportive nine states York, Nebraska, Jersey, Pennsylvania. Missouri, It is Michigan, ironic, New New thought, eight symptomatic of those nine states current but Only fully partially abrogated doctrine. or have Missouri continues support it. the sociological political broader ground that it would home, introduce organized society, into the the basic unit of discord, distrust, suspicion and and would be inconsistent with the Judge Marbury common welfare.” Chief then pointed ground out that "This last is as artificial as the first. It applies to a post-bellum theory clearly situation a which is only applicable difficulty to conditions prior to the which caused bringing legal discord, of the After action. home, suspicion and say distrust have entered the it is idle to that one of parties shall not be to allowed sue the other because of bringing already fear of in what is there. How- ever, these ancient part theories which form a ofthe common law have be they followed us changed unless have been by legislative action, and the import clear decision David, (1932)] [v. the David 161 Md. 532 case is that the emancipatory strictly statutes must be construed.” at seq. et of 199 Md.

Former Chief Judge Hammond Fernandez (at Fernandez, 214 Md. page 135 A.2d 886 said: Md.) 521 of 214 Maryland "The cases in interpreted have [Married Womens] Act such given with strictness and have it such limited effect that we find ourselves unable to follow the authorities elsewhere without our overruling prior deci- sions, despite appeal to reason and convenience that the rule urged upon [abrogation us immunity] has.” Judge pointed Hammond also out that the literal lan- guage of the Act against authorized suits husband both tort and breach of contract. Id. at 524. changes The occurring since astounding. 1965 are At this

time, excluding Maryland, all the other 49 States now have addressed the with following issue results:

1. 12 recognize States continue to the doctrine. 2. 35 States abrogated fully have the doctrine or partially. States, 3. In 2 a rule imposed by statute. Appendix A, 6. See wherein references will found be to decisions in all our States, sister Court in the District of Columbia and in the United States Circuit Appeals Circuit, summary for the Fourth awith brief of their holdings. doctrine continuing recognize States doctrine; recognize continue Twelve states Kansas, Hawaii, Mississippi, Delaware, Florida, Georgia, Tennessee, and Ohio, Missouri, Montana, Oregon, Wyoming.7 quota- in the above states but varied for decision

The basis assigned for all of the reasons present will tions from three retention of the doctrine. (1979), Delaware Alfree, 410 2d 161 A.

In Alfree v. the doc- recognizing position its reexamined Supreme Court 162-63: it, pages saying at support trine and continued to one spouse in Delaware that "It is settled law v. Plotkin at law tort. may sue the other not (1924); v. Peters A. 455 Plotkin, Supr., Del. 125 (1933); Pont du Peters, 28, 169 A. 298 20 Del. Ch. (1953); 493 A. 2d Pont, 33 Del. Ch.

v. du (1959); Owens, 149 A. 2d 320 Supr., Del. Owens v. (1964); A. 2d 807 Hill, Supr., Del. v. Saunders 2dA. Inc., Supr., Del. Synthetic Ropes, Fields v. (1965) Perez, Line, of v. Inc. Penn. and Short (1968). not We are A. 2d 341 Supr., Del. recognized law rule as persuaded that the common case in 1924 in the Plotkin by Superior Court by Chancery Supreme and the the Court by judicial be overruled Court since 1924 should each other right spouses] to '[T]he [of decision. sue relations and very heart of domestic strikes at ties, upon only upon the home but its effect society generally reaching.’ far Plotkin would be Plotkin, supra, 125 A. at 457. modern, widespread

We are aware of the e.g. criticism of the rationale of the doctrine. See Merenoff, A. 76 N.J. 2d Merenoff (1978). only a handful currently ['... 958-960 in its unqualifiedly retain the doctrine courts Appendix 7. See A.

pristine 954; formulation’ 388 A. 2d at '[i]t is clear,..., forms, its despite varying survival in no longer the doctrinal monolith it was in 955.] olden times.’ 388 A. 2d at But, nonetheless, that, we think in addition to its State, time-honored recognition in this it retains sufficient merit to warrant continued adherence this Court for two sets reasons. law,

First as to tort elimination of the doctrine (1) open up possibility could: of various tort actions such as assault and infliction intentional emotional harm go which could heart of pub- lic policy legislative policy relating to mar- (2) riage; many make routine automobile cases way of contribution an involuntary suit of one spouse against another; common make automo- issues, bile negligence including assumption of the guest risk and questions, statute of aggravated ones by another; accusation spouse against one and legislative affect policy in the no-fault insurance field.

Second, law, as to property we note marriage many has protective attributes not available to including duty others the support, the right to inherit, and right the property to hold free from by spouse’s assault a individual creditors tenants by entirety. Thus, the public policy relating to the marriage complex status is more than treatment interspousal immunity doctrine in iso- lation suggest. would

Like the public policy considerations involved in the oft-attacked Statute, Automobile Guest problem is 'more appropriate legislative solution judicial than for determination. The General Assembly has access to relevant information bearing upon these matters significant more than any Court, afforded this bound as it is the limi- judicial tations the record of this proceeding.’ Jus- (1974). 97, 102 A. 2d Gatchell, Supr., 325 Del. tice pub effected the well-settled change If is to be a effected State, change must be such lic ofthis policy by this court.’ Saunders Legislature Hill, 810.” 202 A. 2d at supra, (1979), Supreme Raisen, 2d 352 379 So. In Raisen v. decision, support continued of Florida in a 4-3 Court doctrine, 355: saying page spouses have

"Adversary between tort lawsuits embittering upon domestic effect upsetting an But relationship. the marital tranquility and not disturb the non-adversary that do lawsuits encourage marriage peace harmony claims, where particularly fraudulent and collusive any pay company insurance must third-party solution this Florida’s judgment awarded. interspousal tort 1829 has been dilemma since There have immunity. is still a viable solution. This many changes in Florida since but been tort immun- policy justifying interspousal reasons ity still exist. law doc-

Accordingly, we hold that the common tort is still viable trine that it a tort action between precludes Florida and husband and wife in all cases.” (Ga. Co., Indemnity In 282 S.E. 2d 896 Robeson v. Int’l. 1981), Supreme of Georgia, acknowledging Court in the last widespread modern criticism of the doctrine that increasing had number of abrogated decade been an states, at majority opinion page nevertheless said seq.: et reasons,

"For we hold that the doctrine of two interspousal immunity not now be abro- should gated by this court.

(a) allowed, If was it litigation tort broadly types: would be into two distinct divisible 256

those judgment actually suits which the would be paid by spouses one and those suits in which an company payment insurance would be liable for judgment. Since husband and wife do live from the same it is purse, problematic somewhat money pay judgment order one to a obtained is, other in a tort suit injury. for It personal essence, taking pay from Paulfine]. Peter to And in which judgment those suits paid by is to be an company invariably insurance are friendly and/or collusive, at least between the The spouses.. present stated, exception. previously case no As deny defendant Joel that he negli- does was gent.” totality

From the of decisions in the twelve states retaining doctrine, intact the interspohsal we glean the following reasons such retention: unity

1. The husband wife. (Hawaii 1981) Peters, Peters v. 2d P. Interspousal destroy tort actions will the har- mony of relationship. the marital Alfree; Alfree v. Raisen, Raisen v. Robeson v. Indemnity Co., Int'l. supra; Peters, all v. Peters (Hawaii 1981) 8; 634 P. 2d Sink, Sink v. (Kan. 1952); P. 2d Varholla, Varholla v. (Ohio 1978) 383 N.E. 2d 888 3. Retention of prevent the doctrine will collusive

and fraudulent claims. Alfree, Raisen, Alfree v. Raisen v. supra; both (Hawaii 1981) Peters, Peters v. 634 P. 2d 586 4. Retention of guard against the doctrine will an

increase trivial claims. Alfree, Alfree supra; Smith, Smith v. 287 P. note, however, XI, 8. We that Ch. Sec. of the Hawaiian Acts granted which tained the authorize right married women the to sue in their own names con- specific provision that "... this section shall not be construed to (Peters Peters, page suits between husband and wife.” 2d). of 634 P. Varholla, 1955); v. Varholla (Oregon 2d 572 1978) (Ohio 2d 383 N.E. adequate furnish courts and criminal

5. Divorce redress. McKinney v. supra; Thompson,

Thompson v. 1943); Austin (Wyo. 2d 135 P. McKinney, 1924) (Miss. Austin, So. 591 Leg- of the purview solely Change is within islature. Rogers, 177 Alfree, Rogers v. supra;

Alfree v. (Mo. 1915); McKinney 382, 384

S.W. 1943); (Wyo. Austin 135 P. 2d 940 v. McKinney, (Miss. 1924); Wooley v. Austin, 100 So. 1968). (Tenn. 2d Parker, 432 S.W. (1943), the 2d 940 McKinney, 135 P. McKinney v. In court) (a after Judge three Wyoming

Supreme Court abrogate the not did of the holding that the Statutes State torts, immunity for law rule common open should doors of courts the view that the expressed spouses negligence between ordinary actions for for thoroughly so been has tranquility if the domestic when other, for each affection lost all parties have upset and available; legisla- and that always the divorce court is change of important an body make such proper is the to ture tranquility of disturbing for a field policy opening family relations. is no that there McKinney urged concurring Judge

A where in motor torts interspousal actions deny reason to acknowledged such protection. there was insurance He main- but and collusion danger of fraud a course created prevent such power to possess tained that the courts danger. that the State’s the view dissenting Judge expressed

A law dis- for the common Act no basis Married Womens left sue each other. ability spouses abrogated the doc- stated, have 35 States previously As unduly prolong opinion this would fully trine or It partially. set forth in full detail the every basis for decision such State. quotations We believe that from opinions in a few such fully present States will serve all of the reasons the conclusion abrogation that of the doctrine required. was abrogating

States doctrine (8 partially, fully) A. Partially abrogated in 8 States.

1. As to motor torts 6 States 2. As to personal injury all actions (Iowa)

1 State 3. As to only intentional torts (Texas)10

1 State A. 1. Abrogating toas motor torts (Mass. Lewis, In 1976), Lewis v. 351 N.E. 2d 526 Supreme Judicial of Court page Massachusetts said at et seq.:

"The defendant further argues that even if by statute, is not mandated a common law long standing rule such should be abolished, all, by if at legislative and not judicial action. concedes, must, The defendant as he that it power authority within the of the court to abrogate judicially rule; this created and the mere longevity of the rule does not itself provide cause stay us to our hand if to perpetuate the rule would to perpetuate be inequity. When the rationales gave which meaning and coherence to a Abrogating Idaho, Massachusetts, Nevada, as to motor torts are: Island, Vermont, Virginia. (cid:127)Rhode abrogated 10. Other only States had the doctrine as to intentional torts enlarged abrogation: Rogers but later Co., See: v. Yellowstone Park (Idaho 1975); P. 2d 566 MacDonald, (Maine MacDonald v. 412 A. 2d 71 1980); (New Overton, 1975). Maestas v. 531 P. 2d 947 Mexico vital, longer no rule are judicially created the needs consonant with rule itself is not only has the court not society, a contemporary reexamine its duty to authority also the but an by rote apply than to precedents rather de Vanderbilt Chief Justice antiquated formula. judiciary interaction between scribed this passage oft cited evolving common law an 505, A. 2d 495, Culver, 23 N.J. from State v. 1387, denied, 77 S. Ct. 354 U.S. cert. (1957): great virtues 'One of the L.Ed.2d 1441 makes dynamic nature that

the common law is its society at the requirements of adaptable it to the There is not a rule application time of its court. today has not in force law common law, rule of common

evolved from some earlier instances, suddenly in more gradually in some today others, when leaving the common law ago centuries compared with the common law of day night. The nature different as is from of law is each a rule requires common law that time to make sure that applied carefully it be scrutinized not so needs of the times have the conditions and of it the changed application as to make further posed prob Pound injustice. instrument of Dean Legal in of His admirably Interpretations lem his stable, stated, tory when he 'Law must be yet it cannot stand still.’ had occasion to effect frequently This court has in insignificant changes through its decisions Sorensen, See, e.g., v. the field of tort law. Sorensen (1975); 350, Mone Mass. 339 N.E.2d Lines, Inc., 354, Greyhound 368 Mass. 331 N.E.2d 153, (1975); Lilly Co., 364 Mass. Diaz v. Eli & 43, (1973), 166 n. and cases cited at 302 N.E.2d 555 case, rejecting in 302 N.E.2d 555. In the Diaz Legisla- argument that the court should defer recovery for loss of question ture on the of consortium, may we noted that 'the Legislature act, rationally all, prefer if it acts at after rather than the common has fulfilled before law itself its 166, way.’ own Id. at at are N.E.2d 563. We of opinion is an especially appropriate that this comment in the case Leg- context this where the islature in c. recognized G.L. Section has immunity rule of but left the has rule form, in its common expressing preference, law implicitly, at least that this court continue to eval- uate the propriety usefulness and the rule. We argument any change further note that the that interspousal immunity the doctrine of should come from Legislature, judiciary, not the has been rejected many considered and decisions abrogating the common law rule.

We conclude open therefore that it is to this court to reconsider the common law rule of interspousal immunity and, so, having opinion done we are of longer it should no bar an action spouse one against another in a present case such as the one. We believe this result is consistent general with the principle injury that if there is tortious there should recovery, be only strong arguments public policy justify should judicially created recovery for tortfeasors and bar injured Sons, victims. Commonwealth, See Morash & Inc. v. 612, 621, (1973); 363 Mass. 296 N.E.2d 461 Freehe Freehe, supra, Wash.2d 500 P.2d 771. We have examined the reasons offered in support the and, common law doctrine whatever vitality their generations in the social context of past, today we find them inadequate to support a general rule of interspousal immunity. tort In arriving at this conclusion we are mindful that the rights and privileges of husbands and wives with respect to one are another not unaffected the voluntarily undertaken marriage they have strangers, Conduct, two tortious between together. because

may spouses be tortious between in the marital implied concessions mutual holding limit our For reason we relationship. this acci- today arising of motor vehicle out claims dents.” (1974), Stienne, Supreme 2d the Rupert

In 528 P. interspousal rejected suggestions Court of Nevada the or may collusive in be fraudulent actions motor torts our old trust in the centuries saying principle "belies system ferret out adversary will jury system” and that "Our (at 1015) Court then p. .” The non meritorious claims ... litigation was interspousal permitted other commented that personal as likely family discord actions bring as about torts. immunity, departing

In from doctrine of arising out decision to claims explicitly the Court limited its of motor vehicle accidents. (1978), Court Supreme A. 2d Digby Digby,

In although prior cases the out that pointed Rhode Island abrogation or question of Court had declared that legisla- with the originate doctrine should retention of the function, ture, peculiarly a field own "we abdicate our an old and nonstatutory to consider when we refuse (at 2) unsatisfactory p. The Court then court made rule.” spoke adopted discord and suggested conjugal to the issue of Lewis, its expressed supra, and restricted the views in that case. holding to for the reasons stated motor torts Richard, 300 Reasoning to the same effect were Richard v. (Vt. 1973) Thompson, A. 2d 183 S.E. 2d and Surratt v. 1971). (Va. Abrogating injury A. 2. actions personal as to all 1 State Crabb, Supreme

In Shook v. 281 N.W.2d argument spoke legislative Court Iowa function follows:

262

[1] If legislature chose to address the ques tion, any enactment it dispositive, would be objection. absent constitutional Yet when a doctrine or rule is of judicial origin, we would 'abdicate our function, own in a field peculiarly nonstatutory, when we refuse reconsider an old and unsatisfactory rule’, Lancet, court-made v. Woods (1951). 349, 355, 303 N.Y. 102 N.E. 2d 694 A majority jurisdictions clear of which have con argument sidered this have subject found matter ripe for determination and reached the ofthe merits issue.

The Court observed that concern a possible deluge about jurisdictions actions has been realized in which completely doctrine, have citing abolished the Richard, Richard v. 131 atVt. 300 A.2d 641. 11 A. 3. Abrogating as to only: intentional torts 1 State The Supreme Caudle, Court of Texas in Bounds (Texas 1977) S.W. 2d 925 declaring after that the doctrine "has come under severe attack nearly from all courts that [it]”, have considered found there was "no sound basis for barring a suit for an intentional tort.” Fully

B. abrogated in 27 States. The Supreme Court the United Thompson States in Thompson, supra, page at 619 of 218 and at page U.S. Ed., 54 L. said: "In no act called our attention has the right of the wife been carried to the of opening extent courts complaints of the character of the one here involved.”

The many Courts of States interpreted have so Married Womens Acts other statutes. 11. Texas. Arizona, Arkansas, Connecticut, Michigan, Hampshire, New New York, Oklahoma, Carolina, Appen- South South Dakota and Wisconsin. See

dix A. of Connecticut Supreme Court of Errors In 1914 the citing two Brown, 42, A. after Brown v. 88 Conn. Con- of contract under sustaining suits breach prior cases A.: Act, page said necticut’s Married Womens from the in favor arises "If of action her a cause injuries [contractual] of such wrongful infliction another, why wrongful the upon her does not injuries by give her husband now of such infliction may him? If sue against her she a cause action may him why not sue promise, him a she for broken is a answer for arm? The defendant’s a broken it..... public policy forbids wise a of action

In the wife has cause the fact that wrongful injuries her for to against her husband him, we see person or committed property public or nothing injurious against which to the is This good against good morals. is public or or a determining for whether a statute usual test is against public policy. is When wife contract own possess property and deal with her allowed like own name a feme carry and on business in her sole, ought right to have the same contract she contracts, remedies and and the same enforce her property which others injuries person for to her and and have, upon her contracts for her be liable position This in same others are. torts the as danger that the domes- which she now stands. The may if husband and tranquility tic be disturbed rights against have of action each other for wife torts, with and that the courts will be filled actions assault, brought by against them each other slander, libel, cases suggested some defendant, think is not cited behalf of we serious.”

Other rejecting cases majority views Thompson supra, Thompson, adopting v. the views ofthe dissenting Justice Harlan are: (Okla. 1914) Fiedeer,

Fiedeer v. 140 P. 1022 (N. 1915) Gilman, Gilman 95 A. 657 H. (S. 1920) Prosser,

Prosser v. 102 S.E. 787 C. (Wis. 1926) Pierce, Wait v. 209 N.W. 475 (Ark. 1916) Fitzpatrick Owens, 186 S.W. 832 (S. 1941) Scotvold, Scotvold v. 298 N.W. 266 D. (Mich. See, also, Hosko, Hosko v. 187 W. 2d 236 N. 1971); State Farm Mut. Auto. Ins. Co. v. (N. 1974). Westlake, 324 N.E.2d Y. 1953) Gosser,

Brown v. (Ky. S.W. 2d 480 discussed three suggested bases for retention of the doctrine:

(As to harmony) marital "It is difficult to see how an personal injuries action for disrupt would domes- peace tic and tranquility more than an action for damage to property;

(As fraud) "The fear that relaxation of the common law open rule will the door to fraudulent claims, especially fictitious against insurance companies, has less force argument than the of peace felicity.’ 'domestic We are not willing admit ineffectual, that the courts are so jury nor our system imperfect, so that fraudulent claims cannot be detected and disposed accordingly.” of

(As decisis) appellant stare "The strongly relies on the of principle stare decisis to maintain posi his tion that the common law rule still exists Kentucky. undisturbed in It must be admitted that stare decisis supports position, his but it seems to us the words of Mr. Justice Brandeis in of State Washington Co., W. C. & Dawson 264 U.S. 302, 309, 44 S. Ct. 68 L. Ed. are applicable here: rule of ordinarily a wise decisis is

'Stare universal, inexorable not a But it is action. court has which The instances command. ” (at many.’ page are its admonition

disregarded 2d) 484 of 262 S.W. 1980) (Me. MacDonald, 412 A. 2d

MacDonald v. to the applies it decisis as of stare principle discussed the page 74: immunity, saying at of doctrine forcefully stated too, have we years, "In recent marital involving the tort in matters of that hollowly and 'stubbornly, relationship we cannot by the 'shackles’ stay anachronistically’ bound Moulton v. law. the common the 'formalisms’ also stressed Moulton, 227. We have supra, at principle do not undermine declaring, we by so it from Rather, prevent we decisis. of stare it to mandate itself; permit defeating we do lag the 'cultural reality and mockery of Moulton, Moulton injustice’, unfairness judges if the would arise supra, at which cannot avoid predecessors their who like present, to act as required were acting upon, called when past, restrained judges of captives of the so even those bonds to break power without slightest at the changes oftime that withered they touch would crumble.” (Ariz. 1982) Romo, reexamining P. 2d 878

Fernandez v. decisions, unity, principles earlier Arizona discussed the and collusion and found none tranquility domestic and fraud the doctrine. The to furnish a sound basis for retention of said: Court interspousal tort

"The doctrine of antiquated and narrow supported by an cannot be of the fiction 'unity’ perpetuates doctrine that logic inferiority. Whatever disability if not female by, it cannot gone in times unity the doctrine had doc- the today supporting a reason for operate as immunity. interspousal trine of tort doubt, however, harmony family We that will be damaged any by a allowing negli- more suit for the gent injury upon spouse infliction a than the damage goes be if the injury will done unredressed, (at 881) p. the be

While courts should alert note fraud and exists, collusion when it the fact that is an there opportunity for fraud or collusion should not be a denying reason for admission to the in courts cases (at 882) liability.” p. of interspousal tort (N.J. Merenoff, 1978), Merenoff v. A. in 2d abrogating immunity, the doctrine of discussed some of principles sometimes offered justification as its harmony, retention. As to domestic the Court said:

"The harmony posed threat to domestic aby legal spouses action between is an imponderable; marriage may cohesiveness of a jeopardized be (at much by barring a allowing page cause as it.” 959) fraud,

As to the Court said:

"We entertain no doubt that our courts have at their ample cope command means with real spectre or asserted in fraud the context of marital tort claims. For example, could, the courts if neces- sary, high fashion a compensate standard care to for the risk of collusion parties. between the Or this danger could be imposing addressed a burden of proof commensurate with the of fraud dimensions perceived particular case or situation. Moreover, glare the full may truth be best antidote for companies fraud. Insurance might appropriate circumstances reveal their status case, treating defendant-spouse covered as credibility and to attack in order witness hostile scheming may be and wife the husband show that company.” insurance recovery against the a gain 961) omitted) (at (Cites page remedies, said: the Court

As to alternative the existence note as to add, closing "We on a doctrine continuation for the reasons asserted day in this immunity, that no court interspousal that the seriously the view subscribes age injury immunity for tortious abrogation of marital wrong can for the redress 'unnecessary’ because is additional, means. This through other be obtained advanced theory was remedy’ 'alternative retaining for justification as a generations ago Thompson v. immunity in interspousal tort 54 L. Ed. el. S. Ct. Thompson, 218 U.S. subject of even then and was society’s may vindicate law

dissent. The criminal it cannot wrongdoer but punishing interest her or his injured spouse compensate an pro separation or damages. Divorce suffering and hardly be can abuse but escape vide from tortious compensa to redress and right with a civil equated omitted) (at (Cites page injuries.” personal tion for 962). (N.M. 1975); Overton, P. 2d 947

See, also Maestas v. (Wash. March, 1972);Imig v. Freehe, P. 2d 771 Freehe v. 1979). (Neb. 2d 382 279 N.W. Klein, P. Self, and in Klein

In 376 P. 2d 65 Self on the same (1962), Court of California Supreme 2d (November immun- 9,1962) abrogated the day negligent torts and as to torts Self ity as to intentional Klein. rule is and general "...

In Self the Court said should compelling reason that, or some in the absence of statute be negligence proximately is public policy, where there ..; liability” . "that be causing injury, an there should — fundamental of the interspousal disability basis doctrine — legal identity exists; of husband and no longer wife ... and that necessary "the contention that rule to main- — — conjugal'harmony tain is illogical ... and unsound.” (376 69) P. 2d at

In Klein argued the Court after that it stating was that to permit tort based negligence actions on to be maintained spouses between will cause the to courts be inundated with suits, trifling destroy harmony, and, will tend to conjugal insurance, because of possibility the encourage of would col- lusion, fraud perjury, adopted the reasoning Self and argument added: "The inundating about the Courts with trifling palpably suits is unsound.” The Court brushed aside by the fraud and saying: insurance contentions "It would be a sad commentary on the law if were we to admit that the judicial processes so deny are ineffective that we relief must person simply to a otherwise entitled because in some future litigant case a bemay guilty of or fraud collusion. Once that concept were then accepted, all causes of should be action (At system abolished. Our legal is not that page ineffectual.” 2d) 73 of 376 P. (1978)

In Coffindaffer, Coffindaffer v. 244 S.E. 2d 338 Supreme Court of West Virginia commonly discussed two grounds rule, support asserted disruption of the i.e. the of family harmony potential and the for fraud and collusion. The Court declared "... it is to perceive any difficult how law barring access to the personal injuries pro courts for will harmony; mote injustice only and that "We do an not to the intelligence jurors, but efficacy adversary to the system, when express we undue concern quantum over the (at 342) of abusive or p. meritless law suits.” (Pa. Hack, In Hack v. 1981), 433 A. 2d Supreme of Pennsylvania Court declared that policy social traditionally reasons given immunizing for a tortfeasor spouse from liability for wrongs his were: unity

1. The of husband and wife family harmony 2. The promotion actions, prevention The of collusive 4. The avoidance of trivial claims. (1), very purpose

As to the Court that the of Married stated law; to concept Womens Acts was to abolish this as Court expressed belief that an action in tort for negli- gence likely would family harmony be less to disturb than permitted or causes action for breach of contract typically wrongdoing; conversion that involve intentional (3), adopted reasoning the Court ofthe Court in Immer (1970) (N.J. 1970) Risko, 267 A. 2d that "it seems unjust deny many poten- the claims of the because of the tiality few”; (4), for fraud and as to the Court declared suggested that the subject avoidance of trivial claims is analytical the same argument regarding weakness as the possible collusion. The saying "Having Court concluded concluded that relationship may deny marital alone party injury, redress we the defense of abolish interspousal immunity as a bar to suits the courts of this (433 869). page Commonwealth.” A. 2d at To the same effect are: (Utah 1980) Stoker,

Stoker v. P. 2d 590 (Colo. 1935) Rains, Rains v. 46 P. 2d 740 Crowell, Crowell v. 105 S.E. reh. den. 106 S.E. (N.C. 1920) (Ala. 1931) Penton,

Penton v. 135 So. 481 (N.D. Fitzmaurice, Fitzmaurice v. 242 N.W. 526 1932) (Ind. 1972) Robinson,

Brooks v. 284 N.E. 2d 794 (Minn. 1969) Frana, Beaudette v. 173 N.W. 2d 416 (Alaska 1963) Cramer, Cramer v. P. 2d Legal quite clearly scholars believe that modern social justify abrogation conditions of the common law rule. As early James, Harper noting and that "a few liberal permitted decisions have negli- action for the husband’s gence,” declared:

"This result eminently seems desirable. The metaphysical practical and reasons which prevented such actions common law are no longer applicable. danger family The peace to the tranquility and ... grossly has been overemphasized. policy ordinary Sound and right fairness commend the of wife recover for by tortious invasions of her in personality interests Torts, her Harper husband.” The & James: Law I, Section p. 8.10 Vol. 645 et seq.

Dean Prosser thus stated his views concerning current viability doctrine:

"The majority courts which follow this view [that viable] the doctrine remains have buttressed by their inventing arguments, conclusion new early cases, found in the for denying remedy. Apart inertia, judicial from stare decisis or and the policy of strict changing construction statutes law, common it has been said that each spouse has — remedy enough in the criminal and laws divorce untrue, obviously which compen- since neither done, sates the damage or all the covers torts bemay committed. upon Stress has been laid danger claims, of fictitious and fraudulent on very assumption dubious that wife’s love for her husband is likely bring such that she is more one; a false against genuine suit him than a and possibility likewise the of trivial actions for minor annoyances, might which well be taken care of finding all ordinary consent to frictions of wedlock — or assumption at least of risk! The chief reason however, relied upon courts, all these is that personal tort actions between husband wife would disrupt destroy the peace harmony home, the is against policy which law. years publication 13. In the few since become of the 4th Edition in 1978 "the majority minority. Thirty-five view” has now a decided states now fully partially abrogated immunity have or interspousal doctrine. See Appendix A. husband has theory that after a on the bald This is har- wife, peace and is a state beaten his there disturbed; if is suffi- she mony left to be it, will be to sue him for she ciently injured angry or by denying her reprisals from soothed and deterred — has though she remedy and this even legal very ground, him for that left him or divorced any to find although the same courts refuse if sues him tranquility she disruption of domestic pros- brings or a criminal property, for a tort to her to the reasoning appeals him. If this against ecution reader, Torts adopt him all means it.” Prosser let (1978), pages H.B. 862-63. 4th Ed.

The of the publication American Law Institute’s initial 887(b) Restatement, Torts, expressly Section disclaimed a immunity purpose to "state the common law rules as to the (1939) spouse spouse of a the other . ...” from an action 1939, how- appellate Its distillation of the decisions after (1979) 2nd, ever, caused Restatement Torts Section 895F approve abrogation doctrine: "Section 895F. Husband and Wife

(1) A imihune from husband or wife is not tort liability solely by to the other reason of that relationship.

Comment: immunity of one rejects

a. This Section other, which for liability in tort to the spouse from English in the was the universal rule long a time and American courts. wit- The last two decades have Abrogation.

f. rejection and abolition of nessed the definite entirety wife in its immunity between husband and Numerous jurisdictions. number of a substantial opinion of Mr. dissenting courts have followed Thompson, Thompson Justice Harlan Married have held that 218 U.S. in which position equality

Women’s Acts and the 272

they place were intended to the spouses have removed all justification reason and for the immun- ity, spouse and subject liability that one to the any other for it property tort whether is to or to the person. The of these number decisions has been on the in years increase recent and has been encour- aged by spread general liability the use of insurance, particularly in automobile cases. The are indications clear that this is the future state of 14 the law in all states....” Smith, Judge speaking Lusby Lusby, for this in Court v. supra, after commenting that "at no time since Furstenburg, (1927), 152 Md. 247 the has Court examined the foundation (at upon holdings Md.), which our rest” 352 of 283 page made say careful examination of that foundation. It is fair to that his examination demonstrated that the foundation was resting on sand. (1) capsulation,

In opinion in Lusby, supra, pointed out invalidity current imposed upon the disabilities (2) law; original great women rule of that the minds Harlan, of Supreme Hughes Court Justices Holmes and had interpretation dissented from the narrow of the District of Columbia Thompson Thompson, Married Womens Act in v. (3) supra; Chief Judge Marbury rightly that was critical15 (4) cases; in early Judge reasons decision that Hammond’s observation16 language the literal 45, Article Section 5 quite would authorize tort actions was correct17 in accord with the view of the dissenters in Many express See, 14. other e.g. commentators similar views. Greenstone, Intra-family Immunity, (1972); Abolition of 7 Forum 82 McCurdy, Relation, Torts Between Persons Domestic 43 Harv. L. Rev. — (1930); Note, Abrogation Interspousal 1030 Domestic Relations — Immunity Litigation Analytical Approach, (1970); Note, An 19 L. DePaul Rev. 590 Wife, (1966); Note, Between Husband and 79 L. Harv. Rev. 1650 (1975); Note, 6 Duq. (1974); Seton Hall Rev. L. 1746 13 L. Rev. 156 Comment, (1975); Comment, (1977); Comment, Suffolk U. L. Rev. 36 Mont. L. Rev. 251 Eng. (1976); Comment, 12 New L. Rev. 333 St. Ohio (1971). (1966); Comment, L.J. 550 3 Rut.-Cam. L. J. 183 (1952). Gregg Gregg, 662, 15. v. 199 Md. 87 A. 2d 581 Fernandez, 16. Fernandez 214 Md. 521. Lusby Lusby, Md. 390 A. 2d footnote 6. in Stokes the decision that since Thompson, supra; have in which courts of cases parade been a there has law rule. common previous altered however, unnecessary, Lusby, found it supra, The Court in viability of the continuing upon question rule cases, general negligence rule declaring: prior cases or elsewhere

"... find in our nothing We Maryland common law of that to indicate under from hus- to recover her permitted a wife not was alleged type proved when band in tort she alleged. here conduct outrageous, of intentional as England in common law Note that under the old it under 'the in Blackstone was reflected wife 'might give his that a husband common law’ added) type of (Emphasis The moderate correction.’ by the being not forbidden action in the case at bar any or statute of this of this State common law State, Md. trial court erred.” 283 it follows that the 358, page page 390 A. 2d at to the rule continues In the case the issue whether subject by view now held clearly We share the be viable is before us. that the majority the vast of American States of modern in the circumstances rule is unsound vestige past. It of the We subject. in such as the is a life cases its do reasons asserted for retention persuaded that the are scrutiny. no reasonable They careful furnish survive injury. We recovery personal of for tortious basis denial of a justifies retention subsisting public policy find no recovery for immunity that bar judicially created would Lewis, in such as Lewis v. injured present. victims cases 1976). (Mass. 351 N.E. 2d of stare decisis of the doctrine

We are mindful of the value stability, certainty of and aware that for reasons left to the ordinarily should be changes in decisional doctrine Md. County, 295 Legislature. Montgomery Harrison v. (1983). A. 2d Ass’n., Operators

18. Stokes v. Taxi 248 Md. 690. Harrison, supra, in This true cases particularly such Legislature rejected where the repeatedly had efforts achieve legislatively judi- that which we asked to grant were Moreover, cially. in requested Harrison the from change "contributory negligence” to "comparative negligence” required selection from of the latter several forms doctrine — markedly differing productive upon each effects rights obligations all parties negligence litigation.

Nonetheless, Harrison, pointed as we "we supra, out have [the decisis] doctrine of stare never construed inhibit us changing from modifying judi- or a common law rule find, cial decision where in light changed we or conditions knowledge increased that the rule become has unsound life, vestige circumstances of past, modern no (At Md., 459 of longer people.” page suitable our 2d). of 456 A. State,

In Pope 284 Md. 341-42 we said: may "[The law] common be changed legisla- tive act as Art. Declaration of Rights provides. may ... It be expressly changed by also judicial We in Ass’n of decision.... asserted Taxi Co., 181, Oprs. Yellow Cab 198 Md. 82 A. 2d (1951); frequently We that it held is have our duty to determine the it common law as exists in this State.. .The doctrine of stare decisis does not preclude the of duty.” exercise this In v. King, (1966), White 244 Md. 223 A. 2d 763 we said: decisis, is,

"The doctrine of important stare as it not be preventing construed us from changing a rule if of law we are convinced that the rule has become unsound the circumstances of modern life.”

In such cases as the we present legislative have no barrier to abrogation of Indeed, this outmoded rule law. of after legislative passage and approval by people of Article 46 deprivation any ancient Rights of the Declaration law this the basic contravene sex rights upon based would State. "conduct, tortious token, recognize

By same we spouses between may be tortious strangers, between two in the marital implied mutual concessions because of the page N.E. 2d at Lewis, supra, 351 relationship”, Lewis v. on necessarily be determined will in such cases Decision a case to case basis. rule

Accordingly, abrogate the we apply the sounding negligence in this State as to cases abrogation to all prospectively case and such causes this filing opinion date of the accruing after the action case.19 this case reversed

Judgment proceedings. for further remanded appellee. paid by to be Costs Davidson, J. concurs in the result. "Accruing” discovery discovery under the includes of a cause of action common law bar

rule, adopted in but the rule excludes the removal of opinion. this

APPENDIX A Present status Interspousal Immunity Rule in 49 States other Maryland; than in the Columbia; District and in (CA 4) Admiralty Alabama: Penton, Penton v. (1931) 135 So. 481

(Rule fully abrogated) Alaska: Cramer Cramer, v. P. 2d 95

(1963) (Rule fully abrogated) Arizona: Romo, Fernandez v. 646 P. 2d 878

(1982) (Rule fully abrogated) Arkansas: Leach, Leach v. 300 S. W. 2d 15

(1957) (Rule fully abrogated) California: Klein Klein, (1962) v. 376 P. 2d 70

(Rule fully abrogated) Colorado: Rains, (1935) Rains v. 46 P. 2d 740

(Rule fully abrogated) Connecticut: Brown, (1914) Brown v. 89 A. 889

(Rule fully abrogated) Delaware: Line, Short Perez, Inc. v. 238 A. 2d (1968)

(Rule acknowledged and sustained) Florida: Raisen Raisen, 379 So. 2d 352

(1979) (Rule acknowledged and sustained) Georgia: Eddleman Eddleman, 189 S.E.

(Rule acknowledged and sustained) 277 455 42 Hawaii Tugaeff, v. Tugaeff Hawaii: (1958) 586 Peters, P. 2d 634 v.

Peters (1981)

(Rule acknowledged sustained) 733 P. 2d Hays, 209 v. Lorang Idaho: (1949)

(Rule as to abrogated torts) intentional Co., Park Yellowstone v. Rogers (1975) P. 2d 566 (Rule as to abrogated torts) motor Bank, First Ntl. v. Illinois: Heckendorn (1960) 2d 571 166 N.E.

(Rule statute) imposed 2d Robinson, N.E. Indiana: Brooks v. (1972) (Rule fully abrogated) Crabb, 2d 616 281 N.W. Iowa: v. Shook (1979) (Rule all abrogated for actions) injury personal (1952) Sink, P. 2d 933 Kansas: Sink (Rule acknowledged and sustained) Gosser, 2d 480 262 S.W. Brown v. Kentucky: (1953)

(Rule fully abrogated) Bureau, Farm v. Southern Louisiana: Smith 2d 174 So.

(Because competing statutes, of two effect (Article and LSA-RS 9:291) a cause has remedy to but no action it) enforce Maine: MacDonald MacDonald, 412 A. (1980)

2d 71 (Rule fully abrogated) Massachusetts: Lewis, Lewis v. 351 N.E. 2d 526

(Rule abrogated as to torts) motor Michigan: Hosko, Hosko v. 187 N.W. 2d 236

(1971) (Rule fully abrogated) Minnesota: Beaudette Frana, v. 173 N.W. 2d (1969)

416 (Rule fully abrogated prospectively) Mississippi: Austin v. Austin, 100 So. 591

(1924) (Rule acknowledged and sustained) Missouri: Rogers v. Rogers, 177 S.W. 382

(1915) (Rule acknowledged and sustained) Montana: Conley Conley, v. P. 15 2d 922

(1932) (Rule acknowledged and sustained) Nebraska: Imig March, v. 279 N.W. 2d 382

(1979) (Rule fully abrogated) Nevada: Rupert Stienne, v. P. 528 2d 1013

(1974) (Rule abrogated as to torts) motor New Hampshire: Gilman v. Gilman, 95 A. 657

(1915) (Rule fully abrogated) 279 A. 2d Merenoff, v. Merenoff Jersey: New (1978) (Rule abrogated) fully v. Ins. Co. Auto. Mut. Farm State York: New (1974) 2d 137 N.E. Westlake, 324 (Rule abrogated) fully Overton, P. 2d 947 v. Maestas Mexico: New (1975) (Rule fully abrogated) Crowell, S.E. 206 v. Crowell Carolina: North (1920) (Rule fully abrogated) Fitzmaurice, 242 Fitzmaurice Dakota: North (1932) N.W. (Rule fully abrogated) 2d 533 N.E. Lyons, Lyons v. Ohio: (1965) (Rule acknowledged sustained) P. 2d Courtney, 87 Courtney Oklahoma: (Rule fully abrogated) 2d 572 Smith, P. 287 v. Smith Oregon: (1955)

(Rule acknowledged sustained) 2d 859 Hack, A. 433 Hack v. Pennsylvania: (1981)

(Rule fully abrogated) (1978) 12d 388 A. Digby, Digby v. Rhode Island: (Rule as to abrogated torts) motor Co., 394 Ins. Mut. Amica Asplin v. 2dA. 1353

(Rule where abrogated spouse either death between intervenes act com tortious suit) mencement South Carolina: Pardue Pardue, v. 166 S.E. 101 (1932)

(Rule fully abrogated) South Dakota: Scotvold Scotvold, v. 298 N.W. (1941)

(Rule fully abrogated) Tennessee: Lillienkamp v. Rippetoe, 179 S.W. (1915)

(Rule acknowledged and sustained) Texas: Caudle, Bounds v. 560 S.W. 2d (1977)

(Rule abrogated as to torts) intentional Utah: Stoker, Stoker v. P. 2d 590 (1980)

(Rule fully abrogated) Vermont: Richard Richard, 300 A. 2d 637

(1973) (Rule abrogated as to torts) motor Virginia: Surratt v. Thompson, 183 S.E. 2d (1971)

(Rule abrogated as to torts) motor Washington: Freehe Freehe, 500 P. 2d 771

(1972) (Rule fully abrogated) Virginia: West Coffindaffer v. Coffindaffer, 244 (1978)

S.E. 2d 338 (Rule fully abrogated) Wisconsin: Pierce, Wait v. 209 N.W.

(Rule fully abrogated) P. 2d McKinney, McKinney v. Wyoming: (1943) (Rule acknowledged sustained) U.S. Thompson, Thompson of Columbia: District Ed. L. (1910) acknowledged (Rule sustained) 2d 615 F. Byrd, 4): Byrd (CA Admiralty ("Interspousal day whose doctrine ais p. gone,” come has 621) J., Couch, dissenting: today

The Court has abrogated the common law rule of interspousal to in sounding negligence. as cases I must respectfully dissent, any personal not because of opin- ion against allowing by such actions brought one spouse against another, but I because believe this change involves public policy and policy change that is best made the legislature.

The thrust of majority’s reasoning the appears to be that the immunity rule no a longer has valid basis and the trend throughout jurisdictions our sister abrogate is to it. IWhile recognize "[t]he that common subject law is ... to modifica by judicial tion decision in light changing of or conditions increased knowledge where this Court finds that it is a vestige past, of longer no suitable the circumstances people[,]” Butler, of our 174, 182, Felder v. 292 Md. 438 A.2d 494, (1981), my public view this involves a matter of such, policy. As I believe it normally then becomes a matter legislature. Felder, for the Judge In Chief Murphy wrote the Court:

"Although empowered change common law light changed conditions, rules in has Court always recognized that declaration of public policy normally is the function legislative branch of government. Adler Corp.], [v. American Standard (1981)]. [31,] [, 291 Md. at 45 432 A.2d 464 The Court has therefore a declined alter common law rule the face of indications that to do so would be contrary to public State, policy of the declared Assembly Maryland.” General Id. at 438 A.2d If, indeed, writing slate, were majority’s we on clean very view could well be supported. is, fact The of the matter however, Court, that this issue has been before the in one another, form or since passage of the Married Women’s Act of Lusby 1898. In Lusby, 283 Md. 390 A.2d 77 (1978), Judge Smith thoroughly many reviewed the the inter with was concerned this Court instances which (1957, Repl. Code Maryland now pretation what immunity.1 interspousal 5,§ Vol.), in the context Art. all of our that not review, Judge Smith wrote During his bandwagon of those on jurisdictions jumped "have sister out immunity[,]” pointing who would abolish doctrine, th[e] upheld have of decisions "[a] number terminated before relationship had marital even where the 349, A.2d at 84. Id. 390 action.” at filing of the tort the prior these that in some of Furthermore, Lusby out pointed legislature to enact Court, effect, invited the the cases any if immunity rule and stated legislation abrogating body. that come from it have to change be made would was to Assembly has Finally, "[t]he that General he also stated be a new statute suggestions by this Court heeded the 2 Thus, it to me is clear 357, A.2d at 88. enacted.” at 390 Id. con periodically has century this Court that for over a half immunity and concept of cerned itself with the fiat, abrogate refused, by judicial consistently has according to with it rule, legislature to deal leaving it to the policy. of perception public its in Alfree v. observed Court of Delaware Supreme

As the dismissed, (1979), 446 U.S. Alfree, 161, 163 appeal 410 A.2d (1980): 2145, 931, 64 L.Ed.2d 783 100 S.Ct. of abrogating the doctrine [of problem

"[T]he immunity] appropriate 'more interspousal tort judicial determination. legislative than for solution 690, (1968); Ass’n, Operators Md. 237 A.2d 762 v. 248 Stokes Taxi (1961); Donovan, Hudson, 521, Ennis v. Md. 174 A.2d 339 Hudson v. 519, Fernandez, 536, (1960); 214 Md. Fernandez v. 222 Md. 161 A.2d 698 (1952); 662, (1957); Gregg Gregg, 87 A.2d 581 v. 199 Md. 135 A.2d 886 518, (1940); Brewing A.2d 99 David v. Riegger Company, 178 Md. v. (1932); Furstenburg Furstenburg, David, 532, v. Md. 157 A. 755 (1927). 247, Md. 136 A. 534 damages may Lusby, husband for that a sue her 2. In this Court held wife outrageous, tort....” 283 Md. intentional where his conduct amounts "an added). However, 335,390 pointed (emphasis out that there at we A.2d "nothing prior to indicate that under the in our cases or elsewhere was permitted Maryland to recover from her a wife was not common law of husband in tort when she alleged outrageous, type proved of inten- added). alleged.” (emphasis at 89 Id. at 390 A.2d tional conduct here Assembly The General has access relevant infor- bearing upon mation signifi- these matters more any Court, cant than by afforded this bound as it is judicial of the record of pro- limitations this ceeding’. Gatchell, v. Justice Del.Supr., A.2d (1974). 97, 102 change Tf a is to b.e effected in the public policy State, well-settled change this such must be Legislature effected and not this Hill, [807,] court.’ Saunders Supr.] [Del. 202 A.2d [(1964)].” at 810

Delaware adhering is one still states to the doctrine and has consistently by judicial declined to overrule it deci- Alfree, sion. supra, See at 162 and cases cited therein. As year recent as March of this in Harrison Montgomery County Education, Board of 295 Md. 458-60, (1983),3 456 A.2d Judge 902-03 Chief Murphy wrote for the Court: here,

"When called upon, as to overrule our own decisions, consideration given must be to the doc- — trine stare policy decisis which entails the reaffirmation a decisional doctrine of an appellate court, though even if considered for the time, first might Court reach a different conclu- sion. Ry., 95, Deems v. Maryland Western 247 Md. (1966). 231 A.2d 514 policy Under of stare decisis, ordinarily, 'for of certainty reasons and stability, changes in decisional doctrine are left to Legislature.” Id. at As the Court observed many years Bank, earlier in DeMuth v. Old Town (1897): 320, 315, 85 Md. 37 A. 266 is, end, '[I]t in the far better that the estab- lished strictly rules of law should applied, be even though particular in instances serious loss Harrison, In3. abrogate six members of this Court declined to contributory common law negligence rule of concluding "[i]n that the final analysis, whether contributory negligence to abandon the doctrine of comparative negligence favor of policy public involves fundamental and basic properly by legislature.” considerations to be addressed Md. 295 463, 456 A.2d at 905. individuals, may thereby be inflicted on some by than subtle distinctions invented solely escape consequences, such resorted to firmly long settled fixed doctrines should shaken, .. questioned, confused or doubted.. be to resist the influence which It often difficult exert; hardship is calculated to but palpable a principles at rigid a adherence to fundamental insensibility all a to the results times and stern unvarying prin- enforcement of those which an entail, occasionally surest, if ciples may are the only, by stability not the means which and cer- may be tainty the administration the law Legislature appropriate secured. It is for the enactments the Courts provide remedy a metaphysical refinements may against happening hardships which application result from the consistent of estab- legal principles.’ lished

Accord, Connor, 120, Hauch v. A.2d 295 Md. Baltimore, (1983); City Austin v. 286 Md. 51, (1979); Peters, 405 A.2d 255 Osterman v. 313, 272 (1971); King,

Md. A.2d White v. 244 Md. (1966).

348, 223 A.2d 763 Notwithstanding great importance of the doc- decisis, trine of stare we have never construed it to changing inhibit us from or modifying a common by judicial find, light law rule decision where we changed conditions or knowledge, increased the rule has become unsound in the circumstances life, vestige of modern past, longer no suit- State, 201, people. able to our Williams v. 292 Md. (1981);

438 A.2d 1301 Adler v. American Standard (1981); Corp., 291 Md. 432 A.2d 464 Condore v. Co., George’s

Prince 289 Md. 425 A.2d 1011 (1981); Ansell, Kline v. Md. A.2d 929 (1980). Butler, As we said in Felder v. 292 Md. (1981), 438 A.2d 494 the common law is not —

static; dynamism its life and heart is its its abil- ity pace with keep constantly the world while just searching for and fair pressing solutions to However, problems. considering societal in whether — long-established a unchanged common law rule by the legislature and thus reflective this State’s — public policy is unsound the circumstances of life, always modern we have recognized that decla- the public policy Maryland ration of normally is Assembly; function of the body, by General that Article 5 Maryland Rights, of the Declaration of is expressly empowered to revise the common law of Maryland by legislative enactment. See Felder v. Butler, 183; supra, 292 Md. at Adler v. American Court, Standard Corp., supra, 291 Md. at 45. The therefore, particularly has been reluctant to alter a common law rule in the face of indications that to contrary do public policy so would be to the See, e.g., Co., State. Condore Prince George’s supra, 289 Md. at 532.”

Furthermore, I Harrison, note that in supra, we included immunity in tort actions an example rather lengthy list of areas of "[consistent the law where with principles, above,] these quoted [as we have on change numerous occasions declined to legal well-settled decisions, precepts established our in each instance expressly indicating change that was a matter for the General Assembly.” 295 Md. at 456 A.2d at 903. my view,

In March, 1983, what we said in equally June, applicable in recognize many 1983. While I of our jurisdictions sister have abrogated, fully part, or in immunity rule, Many some have refused do so. of those which have done so have placed a different interpretation on their Married Women’s Act than has this Court (1927). Furstenburg Furstenburg, 247, 136 152 Md. A. 534 In that clearly case this Court held that the Married legislature Women’s Act the did not express an intention to create, wife, as between husband and personal causes of

287 not I am the Act. Thus exist before which did not action has should, 1983, what stood in overrule that we persuaded years. fifty-five as the law leg- the since 1959 history that demonstrates

Legislative times without seven the matter islature has considered history suggests This abrogating legislation.4 enacting any by of non-action simply a circumstance to me that this is i.e., action, indeed, but, positive one of legislature the abrogate the reason, efforts to of rejection, for whatever Harrison, in observed aptly this Court so immunity rule. As in conclusive, action legislature’s supra,5 "[a]lthough not the to an intention indicative of rejecting proposed change the is 462, 904. . 295 Md. at 456 A.2d at the .. doctrine.” retain on reviewing files Moreover, it is from the committee patent of Assembly well aware the that the General is recent bills jurisdictions. the of this doctrine other status the Nevertheless, In these bills has been enacted. none of me, to history, wrong for the Court appears, face of it to this contrary apparent policy to the impose public its view by very body public. the closest to the view held matter, the my view, its in this reaching In decision emphasis on the decisions majority placing too much (1959) matter of such bills has been varied. H.B. 268 4. The substantive provided not act as a bar to a continuance subsequent marriage parties litigation the of two involved litigation such or execution (1967) bring right judgment. would have created the for a wife to S.B. 137 against prior to a action her husband where the tort occurred the tort (1976) marriage. gave person right originally H.B. a married 1309 assault; against spouse bring the bill his or her in tort for an was action (1977) provided battery. for an to include assault and H.B. amended action battery; spouse it amended in tort for assault and was so either only filing proceeding. divorce that such actions could be filed after of a (1977) (1978) essentially the same as H.B. with similar H.B. 87 was however, amendment; provision to allow the amendment also included a physical injunction protect party courts to harassment. tional torts tional one an either from harm or issue H.B. would created a cause of action for inten- have (1981) originally spouse. addressed inten- either S.B. 188 bills, torts, only include all torts. Of the seven but was amended to 1981, emerged passed In S.B. 188 the Senate with ever from committee. was it died in committee. a vote of 10 to and submitted the House where through legislature from 5. We noted in Harrison that rejected replaced the had 21 bills which would have doctrine considered contributory comparative system. negligence with a fault 295 Md. of 462, at 456 A.2d jurisdictions. other As the Supreme Court Kansas Guffy observed in Guffy, Kan. 631 P.2d (1981) 648-49 : studying

"After states, cases from other we conclude the decisions are based upon the decisional law, statutory public law policy of each respective such, As the cases are. not state. persuasive for the outcome of each case has been by dictated entirely different constitutional statutory instance, law. For at least three states have'interspousal immunity dictated statute.’ 92 § A.L.R.3d community 5. Some states are property states in which damages personal injuries spouse to a community become property. In states, those in the specific absence of statute otherwise, providing damages recovered would be controlled and managed by the husband . O’Connor, 267, 485 107 Ariz. P.2d 1157 Windauer (1971). Some do not states have married women’s acts and may those states be based on the common law doctrine of the unity of husband Therefore, áhd wife. we do not believe weight bf' judicial current authority from other states is either well defined or significance in deciding the. present question for Kansas.” - I believe that abrogation of the doctrine of interspousal tort immunity "involves fundamental and basic public policy considerations properly legislature.” be addressed Harrison, supra, 295 Md. I, 456 A.2d at 905. there fore, respectfully dissent. I am authorized to state that Judge Rodowsky concurs in the views expressed. here

Case Details

Case Name: Boblitz v. Boblitz

Court Name: Court of Appeals of Maryland

Date Published: Jun 30, 1983

Citation: 462 A.2d 506

Docket Number: [No. 126, September Term, 1982.]

Court Abbreviation: Md.