Condore v. Prince George's County

MAUREEN S. CONDORE v. PRINCE GEORGE’S

COUNTY, MARYLAND Term, September [No. 1980.] February Decided J., before and argued Smith, The cause was Murphy, C. JJ. Rodowsky, Eldridge, Cole, Digges, Davidson O’Reilly & were O’Reilly, with whom Thomas Patrick brief, appellant. for on the Serio Attorney, and Michael Ostrom, County B.

Robert Carl Attorney, whom was Bereston, County with Associate brief, appellee. Harris, County Attorney, on the Deputy Court. J., opinion the C. delivered Murphy, J., JJ., filed dissent. Rodowsky, Davidson Rodowsky, infra, J., dissenting at in which opinion page Davidson, in part. concurs (ERA), Article 46 of the Amendment Equal Rights

The Rights, provides: Maryland Declaration of under the law shall not be "Equality rights of sex.” abridged or denied because the ERA in this case is whether primary The issue by upon a Maryland imposing modifies the common law services rendered obligation pay to for medical legal wife a George’s for Prince her The Circuit Court husband. J.) (Blackwell, Maureen County appellant, held that Condore, incurred her pay hospital was liable to bill husband, Louis, county hospital. appellee deceased result, this The court concluded that the ERA mandated with the appellant regard without whether contracted The to her husband. hospital pay for services rendered to decision granted prior wife We appealed. certiorari significant Special Appeals Court of to consider in the case. constitutional raised issue

I 4,1976, On November Louis Condore was admitted George’s County Prince Hospital. signed General He a hos pital form agreeing responsible admission to be for all charges incurred from his admission his discharge.1 until 11, 1976, Louis died in on hospital December after incurring hospital a substantial bill for services rendered to paid him. Louis’ hospital insurer entire amount of the $3,435 hospital except bill for services recorded on the bill heading under the "Date having of Service” as been rendered December 12 and 13 after Louis’ death. County sued Mrs. Condore assumpsit upon the common unpaid counts for the amount. The County moved for summary judgment, attaching hospital bill as an exhibit, together with an affidavit of Louis’ physician attesting to the necessity medical for the services rendered. Also attached to the motion two were affidavits from the hospital’s Manager of Special stating, Accounts personal on knowledge, he special that kept books of accounts regular course the hospital’s of business and that it was the regular course of the hospital’s keep business to such accounts; that in accordance with its regular practice the hospital maintained an account services rendered to Condore; Louis that the Condore appended account to the summary judgment correct, motion was true and the entries having been at shortly made the time or after the time that provided; the services were

"that the dates that appear under date of service plaintiffs billing statements, after December 1976, the death, fact, date of patient’s represent the dates that the posted service was and these ser- were, fact, vices rendered but posted were not patient until after the was deceased.” 1. The form reads as follows: guarantee payment Hospital George’s "... I/we to Prince General charges discharge.” patient

of all from incurred above date admission Respon- until sible” Above line on "Person the form marked appears signature of Louis Condore. appellant opposing summary judgment, filed a motion asserting agreed responsible that she had never to be for her therefore hospital husband’s bill was not indebted to the hospital. summary

At the hearing hospital’s judgment on the motion, appellant argued that the motion should denied dispute because there was material of fact bill, concerning namely, correctness that the hos- pital bill disputed showed on its face that the services were court, rendered after the date of her husband’s death. The referring to the hospital’s Manager Special the affidavit of Accounts, it, oath, said that the evidence before under was death, that the services were incurred before Louis’ although posted to subsequent his account on dates to his death. As to owing amount of the bill to the hospital, and whether the services had prior death, been rendered to Louis’ the court concluded that there genuine dispute was no between the parties any as to material fact.

The court next considered the parties’ arguments as to whether, law, as a matter of the appellant legally responsible for hospital her husband’s County’s bill. The position was that the ERA duty modified the common law the husband responsible to be his wife’s necessaries imposing legal a corresponding obligation on the pay wife to for her County husband’s necessaries. The rely did not provisions (1957, 1980 Maryland Vol.), Code Repl. Art. § specify the husband is liable for necessaries supplied to Although suggested his wife. it §21 may be unconstitutional under the ERA for failure to impose a support obligation wife, similar County on the maintained case, that the statute was not in involved since it solely relied ERA-modified common law to recover from the wife. The appellant argued that the ERA imposed no duty upon pay her for her husband’s 45, § necessaries. suggested She that Art. unconstitutional, in which event there would be legal no obligation on part spouse of either to pay for the However, necessaries of the other. the appellant insisted in the statute not involved the case and that court should rule on constitutionality. not its expanded "equal rights court held that the ERA concept” require acceptance women of "the burdens as expansion.” well as the benefits of such In granting summary judgment County, for the the court said: Maryland at present

“[I]n time the wife is as necessities, for her responsible husband’s such as expenses, respon- medical as would the husband be sible for the wife’s necessities ... without the bene- any fit of provisions amendment the code [Art. 45, § 21].”

Appellant filed a subsequently rehearing motion for suminary judgment favor, raising her same issues previously adjudicated court, adding but no factual basis was contained in the of the hospital’s affidavit Manager of Special demonstrating Accounts that he in fact personal knowledge had of if and when the disputed services were rendered. The court denied the motion. us, appellant urges

Before that the lower court was when, wrong, summary in granting judgment County, for the it genuine determined that there was no dispute any as to concerning material fact properly amount owed to the hospital appellant’s services rendered to husband. point Whether the court erred on this need not be here con- hold, law, sidered for we a matter of appellant that the legally obligated pay this case to her husband’s hos- pital bill.

II Maryland, Under the common prior adoption to the of,the ERA, the had legal duty husband wife supply his life, with necessaries suitable to their station in but the wife husband, had no corresponding obligation her or supply necessaries, him with even if she had the financial State, means to do so. Ewell v. 114 A.2d (1955); Lines, Canoles, 37, 113 Coastal Tank Inc. v. 207 Md.

521 (1955); Shriver, 24, Md. A. 82 Stonesifer 100 59 139 A.2d v. (1904). outgrowth of the was an principle This well-settled early women var placed common married under (1) disabilities, legal e.g., legal ious existence of the wife merged they of the were was deemed husband Remson, regarded person, Inj. Comp. one Criminal Bd. v. (1978); Stark, 168, 282 Md. 384 A.2d Sezzin v. Md. 58 187 241, 49 (1946); 516, 276 Joyce Joyce, A.2d v. Md. App. 742 10 (2) (1970); upon marriage, personal prop A.2d 692 the wife’s erty subject was became vested the husband and to the creditors, Dept. v. Hygiene, claims his Rowe of Mental 247 542, (1967); Wootton, Md. 233 A.2d 769 Clark 113 v. 63 Md. (1885); State, of Edelen, (1884); Bayne v. Use 62 Md. 100 (3) the husband was entitled to the wife’s services and she legally incapable name, making was in her contracts own Tank, Sezzin, supra; Coastal supra; Furstenburg (1927). Furstenburg, 247, 152 Md. 136 A.2d 534 The hus duty supply band’s common law his wife with necessaries care; included medical wife’s right to obtain care such stemmed from the marital relation itself and the husband’s obligations Rowe, incident to it. supra; Kemer v. Eastern Hospital, 375, (1956); Ewell, 210 123 A.2d supra; Carter, Anderson v. (1938); 175 Md. 2 A.2d Co., McFerren v. Goldsmith-Stern 137 Md. 113 A. 107 (1921); Stonsifer, supra.

Because of subjecting the common law doctrine prop- erty creditors, towife the claims of the husband’s Maryland §3, Constitution of Art. 38 directed the Assembly General pass protect property laws from wife the debts of the husband. Consistent with this mandate, legislature constitutional enacted various stat- utes to afford married women the right separate estate protect and to it from the Maryland husband’s creditors. See (1860, 45, §§ Code 1861-1867 Art. Supp.), and 2. In the — — present Maryland Constitution that of the follow- ing provision Ill, § Art. 43: included

"The property of the wife shall protected from the debts of her husband.”

To married women on a more with place equal footing husbands, their a number of "Married Women’s Acts” were subsequently legislature, primarily enacted ch. 267 of the Acts of and ch. 1892 457 of Acts of 1898. These (1957, Maryland statutes are now codified as Code 1980 Vol.), 45, 1, §§ Art. 1-21. Repl. implementation Section Ill, Maryland, § Art. 43 of protects the Constitution of woman, property acquired, including of a married however skill, property acquired "by personal her own labor or provides exertions” from the debts of the husband. Section'4 that married women shall hold their "for their property use, if separate fully they as as were unmarried.” Section 5 business, engage any women "to empowers married and to contract,... fully they if unmarried.” as as were This section specifies may separately also that married women be sued on "upon any their contracts and that a husband is not liable upon contract made his wife in her own name and her own responsibility.” provides nothing Section 21 in the cited shall sections be construed "to relieve the husband from debts, liability engagements for the contracts or wife incur or enter into credit ... upon [his] or as his agent or for necessaries herself or for his or their chil- dren; liability but as to all his shall or such cases continue as at common law.”

Although the 45 provisions enlarged rights Art. removed on married women at common imposed disabilities law, they abrogate liability did not the common law Dudley husband to provide his wife with necessaries. v. Co., 247, (1969); Montgomery Ward & 255 Md. 257 A.2d 437 Tank, 662, Gregg Gregg, Coastal v. 199 Md. 87 A.2d supra; (1952); 518, Riegger Brewing Company, v. 178 Md. 16 (1940); O’Neill, 202, A.2d 99 Noel v. 128 Md. 97 A. 513 (1916). § in the wife vested 5 to contract power name, however, principal in her included contracts for own responsibility necessaries. But the husband was relieved of expressly such contracts if the wife contracted her sole pay separate credit to the debt incurred from her estate clearly or the circumstances showed that the wife assumed liability liability exclusive of the common law of the hus- Anderson, band. supra; Pickett, 10, 158 Farver v. 162 Md. A. (1932); Starr, 218, (1923); Barnes 124 A. 922 Hood, (1921); Hood v. Bliss, 138 Md. 113 A. 895 Bliss v. (1918); Noel, 133 Md. supra. A. 467 The liability of the wife for her husband’s medical bill was squarely before the Dept. Court Rowe v. of Mental (1967). Hygiene, 247 Md. 233 A.2d 769 pre-ERA case, judgment against was rendered the wife for medical care and supplied maintenance to her husband who was involuntarily committed to hospital a state mental for eval following uation indictment on a murder charge. Under then statutes, existing Maryland a wife was liable for the care of a husband within the institution. The wife sought judgment her, reversal ofthe against contending that III, § under Art. 43 of Maryland Constitution, "prop her erty ... protected [was] from the debts of her husband.” The argued State "that the marriage relation itself should operate to make a wife liable for her husband’s medical and hospital bills ... if she ability has the to do so ... .” Id. at 546-47. The Court found no merit in contention; the State’s it said:

"This argument must fall before specific provi- the sions of Section 43 of Article III Maryland of the Constitution.” Id. at 547. rejected Court also argument the State’s that under the

statute wife, the debt was that of the not the husband.

This Maryland was the state of the law on the doctrine of when, 7, 1972, necessaries on November people the of this State approved ERA, thereby adding to the Declaration Rights of the provision in Article 46 that "Equality rights of under the law shall not be abridged or denied because of sex.” We first interpreted the provision Rand, in Rand v. 374 A.2d 900 concerning parental case

liability for the support of minor children. The mother there contended obligated that she was under the common law to contribute support to the of her only minor child to the extent that financially father was incapable of sup porting the child. It argued was that ERA changed liability equal impose upon rule to a mother

common law of their minor chil of the father for with that clearly the ERA stating that the words of agreed, dren. We between equality rights mandated unambiguously and only mean that sex is not a factor.” and women and "can men number of cases in which similar at We reviewed a Id. had been inter amendments of other states equal rights Gould, 85 Wash. 2d Darrin v. preted, particularly Henderson, 458 Pa. (1975), and Henderson v. P.2d 882 (1974). Court of Supreme noted that the 327 A.2d 60 We whether, under in Darrin to consider Washington .declined ERA, classification could be state’s a sex-based that relationship or strict the rational sustained under either com "overriding held that scrutiny tests. That court and rights equalizing state interest” pelling men and women had been determined responsibilities of adoption their of the ERA.2 Washington people Henderson, that the thrust of the the court said rights under the Pennsylvania equality ERA "is to insure 327 A.2d as a basis for distinction.” and to eliminate sex Court, concluding Pennsylvania Supreme at 62. The that factor in the determination longer permissible no "a sex is men and legal responsibilities” of legal rights [the] women, said: or differ impose different benefits

"The law will not society based on the members of a ent burdens 3 Id. they may be man or woman.” the fact broad, cases, we concluded In line with these ERA Maryland mandatory language sweeping fully "are of this State people evidence” that "cogent Md. at for men and women.” rights to equal committed Washington ERA reads: 2. The responsibility shall not be "Equality rights under the law of and Const., § 1. abridged art. of sex.” Wash.

.denied or on account Pennsylvania provides: 3. The ERA abridged "Equality rights denied or under the law shall not be of Pennsylvania the sex of because of in the Commonwealth of individual.” Pa. Const., 1, § 28. art. Maryland in "was adoption said that the of the ERA 515. We did, views of to, drastically alter traditional intended and 516. Accord- validity Id. at of sex-based classifications.” obligation of child parental we held in Rand that the ingly, ERA, was, pri- of the provisions in view of the father, law, as at common but one marily obligation of the their in accordance with equally parents to be shared both respective financial resources. we

In Kline v. Ansell 287 Md. A.2d Rand, held, in that the light interpreted in of the ERA as conversation, which was common law action for criminal husbands, only was unconstitutional available Maryland. gravamen in longer therefore no viable law, adultery. was the wife’s At common action property right body a in the regarded having husband was Thus, adultery considered an invasion of his wife. her injury feelings and an to his property rights the husband’s Davidson, Court, Judge and sense of honor. for the after noting history of the action and its purpose "today’s [and] with sense of fairness .. . incompatibility women,” id. increasing personal and sexual freedom of at 589, observed: law,

"At common the action for criminal conversa- tion provided imposed different benefits to and Only upon different burdens men and women.

man could sue or for criminal be sued conversation. unchanged

These facts remain under the common Maryland today. law as it A man has a exists conversation, but a cause action for criminal Moreover, engages woman does not. a man who an act of with another man’s sexual intercourse who, civilly damages, wife is liable for but a woman activity with woman’s engages a similar another Thus, Maryland’s provides husband is not. law imposes different benefits for and different burdens solely upon its citizens based their sex. Such result violates the ERA.. .. The common vestige cause of action for criminal conversation is a past. It cannot be reconciled with our commit- 526

ment to equality Id. sexes.” at 592-93 (footnote omitted.) State,

In 322, 377 Coleman v. 37 Md. App. (1977), A.2d 553 Special Court of Appeals, relying upon Rand, declared that a criminal statute punishing a husband for the desertion or non-support wife, of his without imposing a corresponding responsibility wife, aon awas sex-based classification which was unconstitutional in view of the ERA.4 Rand its progeny and are in accord with cases construing equal rights similar amendments in other states. (1979).5 Note, See 90 A.L.R.3d 158-216 Gender-based classifications have also been held invalid under the Fourteenth Amendment to the federal constitu Orr, In 268, tion. Orr v. 440 1102, U.S. 99 Ct. 59 Ed. S. L. 2d Supreme 306 Court held that a statute under husbands, wives, but not might pay be ordered to alimony equal protection violated the clause of the Fourteenth Amendment. concluding the sex-based unconstitutional, classification rejected the Court " "old notion” that the woman is for solely 'destined the home and the rearing family, only the male for the ” 6 marketplace and the world of ideas.’ Id. at State apply 4. The statute was amended ch. 921 of the Acts 1978 equally spouse. to each Pennsylvania, In5. one held trial court the common law rule making husband, wife, but not the liable was modified for necessaries ERA, subject liability Gold, that state’s as to wife so husband’s expenses. medical Albert Einstein Med. Center v. 66 Pa. D. & 347 C.2d (C.P. 1974). Pennsylvania Another trial court common invalidated the law husband, imposing liability refusing rule to necessaries on to extend it impose liability upon a wife for Albert her husband’s medical bill. (C.P. 1977). Nathans, Einstein Medical Center v. 27 Pa. Fiduc. 581 6. Orr Supreme followed line of cases in which the Court declared gender-based classifications to be unconstitutional. See Califano v. (social Goldfarb, (1977) 199, 1021, 430 U.S. 97 S. Ct. 51 L. Ed. 2d 270 security provision allowing only receiving benefits to widower if he was half Boren, unconstitutional); Craig his from his wife is 429 U.S. 190, (1976) (law 451, prohibiting 97 S. Ct. L. 2d 50 Ed. 397 beer sales unconstitutional); males under 21 and females under 18 is Stanton v. (law Stanton, of (1975) 7, 1373, 43 setting age 421 U.S. 95 S. Ct. L. Ed. 2d 688 18, majority unconstitutional); Weinberger of women at and men at 21 is (social (1975) Wiesenfeld, 1225, v. security earnings 420 U.S. 95 S. Ct. 43 Ed. 2d L. providing that survivors’ benefits based deceased husband’s payable are wife children but benefits based on deceased courts, equal pro Amendment applying Fourteenth clause, Hatcher v. have reached the same result. tection Stitt, (1979); Hatcher, Stitt v. Ark. 580 S.W.2d (1979); Lovell, Lovell v. 378 So. 253 S.E.2d 764 Ga. (Me. (La. 1978); 1979); Beal, Beal 388 A.2d 2d v. 72 418 (1980); Mitchell v. Buckner, N.H., A.2d 871 415 Buckner v. 1980). (Tenn. alimony Maryland’s 699 Mitchell, S.W.2d 594 Acts of by ch. 332 of the gender-neutral made statute was Colburn, 346, 316A.2d 283 App. 20 Md. v. 1975.7See Colburn (1974). 363, Kerr, A.2d 1001 v. 287 Md. 412 also Kerr See (1980). Baum, 137, 417 Shore, 84 N.J.

In etc. v. Estate of Jersey Jersey held Court New Supreme A.2d 1003 as affording unequal law rule treatment that the common liability for respecting and wives their between husbands equal Amendment’s violated the Fourteenth necessaries Jersey New provision and a similar protection clause here, hospital a wife on case, In that sued Constitution. imposed liability on the common law which theory that to a should be for necessaries furnished wife husband duty on corresponding part create a extended to striking down pay wife to for her husband’s necessaries. classification established the common law sex-based doctrine, the court said: partnership,

"A is a with nei- marriage modern financially on spouse necessarily dependent ther Many have their traditional the other. women shed unconstitutional); payable earnings only wife’s v. ment are to children is Frontiero (1973) Richardson, 677, 1764, (require- 411 93 L. Ed. 2d U.S. S. Ct. 36 583 actually dependent must in order to that a wife show her husband is dependent purposes claim him is for forces as a of armed benefits allowances unconstitutional); Reed, 71, 251, 92 S. L. Ed. 2d Reed v. 404 U.S. Ct. (state (1971) giving preference law to men as administrators of estates Co., Druggists equal protection). Wengler violates U.S. workers’ prove See v. Mut. Ins. also (1980) 142, 1540, (invalidating a state 100 S. Ct. 64 L. Ed. 2d 107 compensation required statute that widowers but not widows to Westcott, dependency); Califano v. U.S. 61 L. 99 S. Ct. (1979) (social depen- security providing Ed. 2d 382 law aid to families with unemployed, dent when wife children when husband but not becomes unconstitutional). unemployed, becomes is Pennsylvania’s gender-based alimony pendente lite statute was declared Henderson, ERA unconstitutional under state’s in Henderson (1974). 458 Pa. 327 A.2d 60 dependence on their husbands active roles as income earners.”

[*] ^{[*] [*]} "Interdependence is the hallmark of a modern marriage. liability- The common rule imposing husbands, wives, but anachronism no longer society. contemporary present fits Under the rule, economically even a husband who is depen- dent on would necessary his wife be liable for the expenses spouses, of both while the wife would not be liable for either. In perpetuating additional benefits a wife when the benefits not be needed, the rule runs afoul of the equal protection clause.” time,

"... At one the of status married women might justified have on a placing duty husband the pay necessary wife’s expenses his without a duty part. correlative on her previously As dis- cussed, imposition the duty of that no longer comports with the role of a contemporary wife and concepts of modern marriage. a The common law must adapt progress achieving women in economic equality sharing and to the mutual of all obligations by husbands Id. wives.” at 1008-1009. Jersey

The New court next considered the "various alter- gender-neutral natives available in a establishing rule for payment necessary expenses by incurred either spouse.” Id. at It said that a marriage modern a wife, husband and whether contributing income or domestic services, unit; necessary are a financial that a expense by both; incurred marriage one benefits and that spouse enterprise. shared The court declined to extend the common law require spouse rule to each completely to be necessaries, liable terming other’s such a solution "equality vengeance” with a because it would result in the exposure immediate property spouse of one for a debt by thereby incurred spouse, affording other a creditor "the same if spouses agreed joint benefits as both had liability.” equity reality,” Id. at 1009. "Neither nor the court said, "justifies imposing unqualified liability on spouse one for the debts of exempting the other or one spouse from liability for the necessary expenses Instead, of the other.” Id. it held that

"both spouses are liable for the necessary expenses incurred spouse. either In a marriage, viable marital partners can decide between themselves how to pay their debts. A creditor providing spouse necessaries to one can assume that financial spouses resources of both are available for payment. However, in the agreement, absence of an the income and property of one spouse should not be exposed satisfy debt incurred the other spouse unless the assets of spouse who incurred the debt are insufficient.

"... The reasonable expectations of marital partners are that their income and assets are held for the benefit of and, the marital partnership inci- dentally, for provide creditors who necessaries for However, either spouse. it would be unfair to accord rights same to a provides creditor who necessaries on agreement the basis of an with one spouse as to a creditor who agreement has an with spouses. both In the agreement, absence of such an a creditor should have recourse to property spouses both only where the financial resources of spouse who incurred the necessary expense are insufficient. Marshalling the marital resources in that grants manner protection some spouse to a who has not expressly consented to that debt.” Id.

To achieve justice "substantial in view of the reasonable expectations parties,” id., of the and taking into account the law, reliance on the

parties’ prior Jersey the New court afforded purely i.e., its new rule a prospective application, to debts incurred after the date of its decision. It said that the wife properly liability assumed that she incurred no when husband, the hospital provided services to her and that the hospital did expect payment not from her in providing those services. cases, view of the principles espoused in these we think

the common law doctrine of predicated upon necessaries is a sex-based classification which unconstitutional under the ERA. While the lower court did directly pass upon 45, 21, § constitutionality of Art. the provisions of that stat- relating ute liability to the husband’s for his wife’s necessaries, being declaratory rule, of the common law are also invalid under the ERA. County ERA itself modified and urges that has by the common law doctrine as to necessaries

superseded liability for necessaries imposing upon reciprocal wife Ill, § 43 of the supplied regard to the husband. With to Art. Maryland Constitution, protects "property” which husband,” County argues wife "from the debts of her ERA, obligation pay view of the later-enacted wife’s longer her medical can no be considered husband’s bill debt, stems responsibility rather a constitutional but by the reciprocal duty from the of marital mandated Ill, hand, Art. ERA. The on the other relies appellant, Maryland, § in Rowe v. applied 43 of the Constitution of as A.2d 769 Dept. Hygiene, of Mental ERA she is afforded notwithstanding and contends that liability for the special protection against constitutional also hospital expenses. Appellant her payment of husband’s law, declared in argues any change in the common § and not the legislature Art. should be made courts. course, necessaries is sub- the common law doctrine of

Of enactment; it legislative or ject change by constitutional where the Court subject change judicial is also decision ERA, finds, that the common regard with or without the no vestige past, longer law rule is of suitable to the State, Ansell, supra; Lewis v. people. circumstances our 705, (1979); State, 284 Md. Pope 285 Md. 404 A.2d 1073 (1979). 309, importuned Although frequently 396 A.2d 1054 so, changed to do has the common law legislature the doctrine, 45, § Art. necessaries as reflected in As stated Study to Report the 1978 of the Governor’s Commission Amendment, Implementation Equal Rights of the between and 1976 a number of bills were the introduced Assembly General to remove sex discrimination from the common law necessaries doctrine. Some of the bills took the approach eliminating the doctrine ofnecessaries and some sought to In spouses. extend it to both a bill was intro- duced relating necessaries, to the sex-neutralize to permit "homemaking spouse” the sex to pledge either the credit of the other. None of the bills was enacted. Con- inaction, trasted with this legislative Assembly the General has, as already observed, we have sex-neutralized criminal statutes pertaining spousal non-support desertion, well as obligation alimony which, the to pay historically, was based on the duty common law of the to support husband his Bender, wife. See Bender v. 282 Md. 386 A.2d 772 (1978). Like alimony, underlying historical basis necessaries doctrine was the duty husband’s unilateral support his wife.

In Rand, we extended common law rule as to support by a mother of her minor making children her equally responsible with the father to extent of her financial resources. We did against not create a new cause of action because, law, mother in Rand under common she was secondarily liable for support, obligation child the father’s being Ansell, In primary one. to extend we declined common law action cause of for criminal conversation to wives, finding that action no vestige past, longer part a suitable common law of this State.

Deems v. A.2d Maryland Ry., Western 247 Md. case, a pre-ERA we modified the common law rule pertaining consortium, to actions for loss of which was then law, the common changed a wife. We

not available only jointly available to husbands and making the action entity. legal as a wives impose doctrine to extend the common law necessaries

To Court of wives, by Supreme the liability upon as was done case, be to create a Jersey Jersey in the Shore would New previously none has against action a wife where cause of authority change the our so We do not doubt existed. to the the necessaries doctrine common law to conform the ERA. underlies rights principle which equality of retained, to be if doctrine is Plainly, the necessaries Constitution, Ill, protecting the § 43 of the provisions of Art. husband, must from the debts of the of the wife property necessary to accommodate yield to the extent Sup. v. Bd. of the ERA. See Kadan dictates of later-enacted (1974); Boyer Elections, Md. 329 A.2d 702 (1967). words, In other Thurston, 231 A.2d 50 of burdens as between equalizing § 43 not a to the is bar ERA’s reach of the operative within the husbands and wives proscribe of the ERA to general purpose The provisions.8 would provisions offensive to its sex-based classifications doctrine by eliminating the necessaries also be satisfied terms, ERA, by its think that the entirety. its We do not must be either of action necessarily requires that course taken, Which best responsive are to its mandate. since both is, think, such funda we a matter of serves the societal need by legisla it be determined policy mental that should judicially expand rather than Consequently, ture. liability by creating reciprocal a new common law doctrine wife, legislative consideration pending doctrine, matter, that the ancient necessaries we conclude ERA, of the common longer part is no violative as it is of the nor the wife and that neither husband law of this State Ill, proposed and 1975 to § in 1974 Art. 43 were 8. Amendments to person’s spouse, liability any "person” that the debts of from insulate their-spouses provide "persons” liable for the debts that are and "only 1976 to approved proposed amendments as to None of these necessaries.” (1975) See, respectively, and SB legislature. SB 52 SB (1976). liable, contract, express absent or implied, medical supplied necessaries such as care to the other. reversed;

Judgment costs paid to be by Prince George’s County. J.,

Rodowsky, dissenting: I agree that power decide, this Court has the based on ERA, evolving or on grounds, common law applies necessaries doctrine alike both sexes. An expanded basis, application, prospective on a should be the holding this case. majority’s apprehension over sweep of a sex neu- is, view,

tral in my justified rule analysis either operated the rule as it at common law or it operates under equal Further, credit opportunity acts. the ERA and acts of Assembly the General have made it plain beyond doubt family support obligations are longer exclusively no imposed on the to Contrary male. that policy, the Court has in opted this case to void support remedy, a rather than expand it. The Court has eradicated the necessaries doctrine any without expressing consideration its possible signifi- society. cance in current Because until today the law of historically upon by necessaries has been persons relied who sell goods full, or being paid render services without in in cash, advance, in judicial I believe abrogation the doctrine’s to be most That abrogation doctrine, unwise. of the rather women, than worthy its credit extension is done name of the ERA strikes asme Orwellian.

I A sex application neutral of the necessaries doctrine not, in my opinion, would automatically have the effect of converting every purchase of necessaries a into husband joint obligation a with his wife. majority The seems to assume it would. It is clear to me that had Maureen S. (Maureen) Condore been spouse admitted to Prince (the George’s Hospital General Hospital) under facts here, Hospital, presented to those identical otherwise summary judgment entitled to a not be would plaintiff, (Louis), under husband, Condore Louis against majority assumes necessaries. The law doctrine of common defense situation, would have no Louis in a reversed that except defense legal has no that, Maureen consequently, assumption appears this Because grounds. on constitutional the ultimate resolving Court in heavily with the weigh non-discriminatory and, thereby, retention against question doctrine, validity under the necessaries application examined. It should be assumption Maryland law of this case. the facts of conveniently be tested on may express contract way relies on Hospital in no Here the Louis was contend that Hospital The does not Maureen. with rest its Hospital Nor does of Maureen. agent fact the may doctrine which the necessaries cousins of case on some it, a of actual easily e.g., presumption with be confused a course of authority based authority apparent or services that its medical position is Hospital’s The dealing.2 Louis, that rendered to necessaries, they were were the relevant throughout the wife of Louis Maureen was liable under that, Louis would be because period and 202, 206, quoting O’Neill, 128 Md. 97 A. 1. See v. Noel " Newbold, Equity, goods Jewsbury Eng. 'When Law and 518: husband, authority part ordinarily to contract on the ofher which a wife has such as where she also presumption residence, dress, by her and delivered at his articles of are ordered liable, being resides, prima is there facie the husband ” (merchant).’ plaintiff of law favor sex, "presumption” presumption, it based on is a whether is Whether the application result in an because of the ERA would and whether its mutual infinite series of presented. It law "presumption” the income forth, presumptions questions which are not are back analysis presumption Hospital of Noel. does not advance the "presumption” exclusively any the common is based on be that such Or, may that the duty spouse female. it the male authority merely permissible bind inference actual may earning spouse the evidence which be drawn wherever earning spouse spouse in the income reside a homemaker and an shows same household purchased on credit and that the homemaker has family. necessaries for the 1950). (Mun. Co., Wife’s A.2d 358 Ct. D.C. 2. Ford v. S. Kann Sons 76 However, liability the on necessaries doctrine. desertion defensive to course of to create a based held dealing in the wife’sname was in a retail account maintained authority apparent to jury question wife had to whether the as pledge the husband’s credit. doctrine necessaries on these facts had Maureen been the patient, Maureen is liable as result of the adoption ERA. One flaw in the Hospital’s analysis is that it totally to ignores whom credit is, was extended Hospital, whose "pledged.” credit was Court, recently

This as had occasion to review underlying various theories the doctrine of necessaries. In Co., 247, 251, Dudley Montgomery Ward & 255 Md. 437, 439-40,

A.2d action against which was a merchant’s spouses separated, husband where the were we said: Generally, duty husband has a his one pay will be liable to wife and if he fails to do so though even furnishes the wife necessaries who or living voluntarily without apart are couple or of the wife. We need not discuss decide fault variously liability relied this impose theories — apparently on the One view husband.

Maryland view, see McFerren v. Goldsmith-Stem — Co., 137 Md. 573 that the wife becomes agent pledge of the husband to his credit. This "implied,” necessity” has called "of agency been 2d Wife "compulsory.” Am. Jur. Husband and ed.) (3d 349; Williston, 270A, § p. § Contracts suggests 151. The Restatement-Restitution making up the true basis be the rules the doc- [Footnote omitted.] trine of unjust enrichment.

[Emphasis added.] A consistent theme our cases on necessaries under the common law has concept been the that it is a pledge of the husband’s credit. Accordingly, we recognized have both in holdings dicta, and in that the husband was not liable if, third party under the case, facts of the particular extension of credit party the third solely wife. (1898) Co.,

Jones v. Joel Gutman & 88 Md. A. 792 bride, involved the new age year of a 71 Up- old widower. on finding groom’s home, that the mar- became the abode, ital tastes, simple reflected including using horse

536 beds, applied plaintiff the for the the bride to blankets on " response 'In following letter: to credit. She received the us, pleased with will be your for an account we application regard in your and await instructions comply therewith ” the bills came 362-63, at 41 A. at 793. When the same.’ Id. he sued on theories pay, in and the husband refused to was and liability presumption for a including necessaries authority. against the husband was Judgment actual errors the a new trial awarded based on reversed and by defendant was prayer requested the instructions. One credit the jury plaintiffs gave find that the "[i]f that the defendant, must be for the wife of the then their verdict should have It held that this instruction defendant.” was some granted "correspondence the furnished been because wife, jury and if the to the evidence, given the credit was Id. at to recover.” plaintiff was not entitled found that fact the (1869) Lowenthal, Md. 413 31 Weisker v. A. at 795. of this was cited ruling. by not a case. a claim

Weisker was necessaries It was a goods seller the sold in 1860 to the wife against husband for husband, as a trader. for based Judgment feme covert jury verdict, Md. appeal. was affirmed on At 416 of 31 this Court said: liability of goods the husband sold to

wife, credit, by authority, his or upon his and assent, express implied, ques- either or be cannot cases, agent, tioned. In such she becomes his relation, of law to that neces- principles incident sarily attach. however, wife,

If, sold to goods are liable, solely, her credit will be husband the sale have been made with his although knowledge, by text.] his [Emphasis assent. O’Neill, Noel A. presented a claim department against store bal- a widow ance during on an account reflecting purchases made her marriage. The account name but was'in the of the wife there to the bills was had directed evidence that husband they paid. Judgment sent to his office from were against the wife was reversed and a new trial awarded. We held form of account was no means conclusive whether was question given exclusively credit to the grant wife. One reversible error the failure requested by charged, instruction the wife which have would substance, duty to supply that the had a the husband that, purchased life if necessities of and the articles were necessities, the had presumption there was husband "pledged payment his own credit individual for the thereof’ and that the the upon plaintiff burden show "that said was upon articles were not by delivered credit extended the husband], plaintiff contrary, but on the were Lthe solely upon plaintiff delivered credit by extended the to the 207-208, [wife].” Id. at 97 A. at 515. unambiguous

An holding that the was not husband liable solely for necessaries furnished on of the credit the iswife (1932). Pickett, 10, 158 found in Farver v. 162 Md. A. 29 The husband, estate, administrator c.t.a. ofhis wife’s reimbursed himself the from estate for certain payments which he had made, including bill, the funeral and grocery bill a medical bill. Residuary legatees challenged the allowance of these charges. imposed The wife had expense the funeral obli gation by on her estate provision suitable her will. This Court then addressed the other and allowances held: propriety

The charging of disputed other items against the estate of the depends testatrix upon inquiry an they as to whether represent debts for which she independently liable .... In this state a married legally capable woman is contracting debts on her responsibility individual for may which her be chargeable. estate The hus- band is not liable for a debt thus contracted Lowenthal, wife’s sole credit. Weisker v. 31 Md. 413; Gutman, 355, 792, Jones 88 Md. A. Code art. 5. sec. The creation of liability an exclusive part the wife or express implied. [cit. In sufficiently om.] this proves case the evidence that, expressly either or implication, credits, assumed given

testatrix alone was by medi- obligations, represented claims for we have supplies cal and for food services 30.] at 158 A. at [162 referred .... Md. 123 A.2d Kerner v. Eastern Hospital, separated the husband and wife had been years, had obtained plaintiff hospital without divorce. The husband, theory against the on the summary judgment necessaries, liability on its bill for a for the balance due long Summary judgment was reversed because confinement. affidavit contradicted the assertion husband’s effect, also, express promise part on his raised desertion the wife in defense of necessaries claim. Additionally, hospital this Court observed that had [the it extended hus- allege "failed to had credit 382, 123 band].” Id. at A.2d at required of the common law doctrine which element the use wife of the credit of the husband also by the State, Maryland Ewell v. following reflected in the cases: (1955) ("The 288, 292, 114 66, husband had 207 Md. A.2d 69 obligation support, of was to furnish necessaries to which not, remedy purchase the did was to the wife. If he her credit.”); 662, Md. Gregg Gregg, his 199 necessaries on ("It (1952) course, 581, is, that 87 583 of true A.2d necessary, and wife is a it is everything purchased by the on wife even necessaries her purchase also true that a credit, require own faith and her husband’s estate cannot them.”); Carter, 540, 542, 2 pay to for Anderson v. (Cost (1938) necessary supplies A.2d services and husband’s charged against to properly deceased wife "no sug in wife’s estate where there was distributive share record, the that gestion exceptions, in and no evidence in .”). the bills the wife’s sole credit... See were incurred Liability Affected Annot., for also Husband Necessaries by Question They Purchased on His Whether or Not Were ("The (1923) Credit, rule to be well appears 27 A.L.R. statutes, settled, that under modern both at common law and given wife is if the furnished to the credit for necessaries exclusively her, ordinarily is not liable to the husband .”). .. therefor . bar, applied to at it is principles

When these are the case present, me Hospital clear to has failed which, in summary judgment, a case had Maureen been the been spouse hospitalization, admitted for Louis would have liable for the bill under the The hos- necessaries doctrine. Louis’ pital admission form for admission of November hereby with the statement "I/We printed concludes guar- certify statements and I/we above are true of all payment George’s Hospital antee to Prince General charges patient incurred from of admission above date discharge.” signa- until There line "patient’s follows a sign, ture” which Louis did not next which a line for the Louis, signature of "person responsible” only Louis, signed. body Hospital’s admission form is divided into general

five sections. The first patient, relates to the relative,” "credit,” next to "spouse or nearest third fourth to "social services” and fifth "liability.” This latter only section is not relevant here. It relates to accidents completed and was not in the instant case. The admission completed basically sheet was typewriting. patient section one block calls "primary This insurance.” completed, was, and the information set forth time, at some circled. The illegible information is in the exhibit filed record space extract. In the for the address the primary insurer appear there in longhand the words "Wife Maureen.” Maureen’s affidavit this case states that her husband "had hospitalization coverage insurance under the Mail Handlers’ Benefit Plan” and that it covered 100% the costs of indicated services but that the insurer refused to pay the claim for services subsequent rendered to the death of Louis. in block the patient’s section of the admission sheet for "responsible "Condore, party” reads: patient’s Louis.” The employer, and and type length employment, are recorded.

Maureen is listed as the wife with the same home address as Louis. place, type Her length of employment are also recorded. is designed of the admission sheet to

The "credit” section "bank,” "landlord or mort- concerning information the elicit holder,” year” and "credit refer- "automobile-make & gage section, section, well the "social service” ence.” This as not at all. completed was by this the evidenced admission

One conclusion from facts in extending credit connection Hospital, is that the sheet admission, looking the hospitalization was to with Louis’ the Under solely to credit Louis. insurance and thereafter above, Maryland expanded make the authorities reviewed neutral, would Hospital doctrine of necessaries sex summary judgment. be entitled to not case, summary judgment for In this Maureen also moved expanded, this If the necessaries doctrine were as defendant. not, summary judgment case where could my opinion, is a account, signed entered for the While Louis defendant. Louis, Hospital addressed to these billing was O’Neill, supra. are not See Noel v. factors conclusive. Further, looked Hospital is an inference that also there does elicit that application the credit of Maureen. The secretary at the years as a employed for 4 Maureen was whether this The record is silent Accounting Office. General to make Hospital to enable the information was elicited spouse working during or with the nearest relative contact hours, purposes. for credit Were or it obtained whether was rule, under a sex neutral necessaries this case to be tried light ofthe to be taken and evaluated evidence would have which, at the time of practices Hospital credit admission, specific amount dealing request with a credit. law, purchases by

At a wife were exclu- common whether was husband credit, in which event her sively on her doctrine, whether the or necessaries not liable under the credit, event in which the husband’s pledged wife selling goods or creditor theory applied, necessaries person judgment made presumably services acceptable credit risk. repayment he looked whom expanded were Thus, if law necessaries rule the common women, against operate include two factors would imposition liability unsuspecting wholesale wives. First, a cannot practical pledge husband as a matter if in only wife’s credit she has none. The issue this case Second, earnings. involves women who have assets or purchase exclusively husband could necessaries on his own credit, expanded and the common law rule would not automatically in drag liability of the wife.

II An even handed Maryland extension of the common law rule would mean that a contract for necessaries made husband could be pledging either with or without the credit wife, Liability rule, of the wife. of the under such a would turn on the facts of each case. Proof of relevant facts is common to litigation. all If the fact of the matter is that credit was extended on the basis of the credit worthiness of a non-contracting spouse, female it to me to be consis- seems tent with apply the ERA to the necessaries doctrine to permit recovery against Any her under those circumstances. concern that improperly creditors will assert their deci- sion to extend credit in the spouse name one was based part on the credit non-contracting spouse, worthiness fact, when such is not the fails to take into account the effect of recent statutes regulating obtaining by a creditor of information concerning sex and considering marital status applications for Equal Opportu- credit. The Federal Credit Act, nity §§ Title 15 U.S.C. 1691-1691f became effective October Maryland 1975. The Equal Opportunity Credit Act, (1975, §§ Md. Code Supp.), through 1980 Cum. 12-701 12-708 July Commercial Law Article was effective act, B,

Pursuant to the Regulation federal C.F.R. §§ 202.1-202.13, adopted. regulation prohibits has been The a creditor from requesting the marital status of an applicant individual, unsecured, for an credit account other than (d) (1). (c) community § property § states. 202.5 Under 202.5 (1) (2) any information request a creditor unless: applicant of an concerning spouse (i) to use permitted will be spouse

account; or (ii) liable contractually spouse will be The account; or (iii) income relying spouse’s on the applicant The is credit repayment a basis for

requested; or (iv) community prop- in a resides applicant The ...; or

erty State (v) alimony, child relying on applicant The is payments separate maintenance

support, or "any person who a creditor Maryland Act includes as (1) [ejxtends, credit for renews or continues regularly: (e) ....”§ 12-701 purposes family or household personal, discriminatory Article. Prohibited the Commercial Law any: Maryland Act include under the practices (5) of the credit Request for or consideration applicant rating applicant’s spouse of an where for a worthy applying and is not is otherwise credit refer- lists credit joint applicant account unless the or has spouse or former spouse ences the name of creditor history credit or the prior no individual designate applicant’s permits applicant on the account. spouse purchaser as an authorized [§ 12-705.] credit looked to the genuinely

The creditor who has dem at best to find it difficult non-contracting spouse a will the credit where onstrate, fact, that he did so after the of these effective date after the extension has been made hand, other theOn statutory regulatory prohibitions. toas credit information elicited properly creditors who have credit equal the advent non-contracting spouse a after ordinarily would legislation applica have credit opportunity reflecting that fact.3 tions

The sex the common law necessaries discrimination only applies non-contracting party rule is that it where spouse. whose is the male The doctrine can pledged credit brought compliance by expanding into with the ERA it to a equal opportunity sex neutral one. Because credit statutes today restrict creditor excursions into the credit worthiness unless, essence, non-contracting spouse the informa- required non-discriminatory tion is for a credit granting decision, I believe such an expanded operate fairly rule can practically. my view the expand decision to or extinguish the common rule approached should be with the recognition that there is a reasonable alternative to abolishing actions for the value of necessaries.

Ill The doctrine simply remedy. of necessaries is It is one of a number of remedies for enforcement of the husband’s duty Clark, common law to support the wife. H. The Law of (1968). If, Domestic Relations in the United States 189-92 on day ERA, following adoption of the this Court were called duty to decide whether the common law of the support husband to his wife would be struck down as unconstitutional, or duty whether the support would way some reciprocal, be made I have no doubt that the result hypothetical of that case duty would have been to extend the sexually on a neutral basis.

Today in Maryland the spousal support obligation is State, mutual. 322, Coleman v. 37 App. Md. 377 A.2d 553 (1977) presented an ERA challenge to the criminal non-support (1957, statute then codified as Md. Code 1976 (a) Vol.), Repl. 27, § Art. 88 under it which was a misde- any just cause, meanor for person, without to "desert or application prepared by 3. Credit forms the Federal Reserve Board to compliance Regulation illustrate with B be found 5 Cons. Cred. (CCH) 40, 68, ¶ Guide at 945 303-312. willfully neglect provide support for the and maintenance of his wife ....” The of Special Appeals Court there held: against

Measured the clear command of the Amendment, Equal Rights question there is no (a) pass § cannot muster. To establish that it is a crime for the husband to desert his wife but no crime for a wife to desert her husband and to estab- lish that it is a crime for a husband to fail support his wife but no crime for his wife to fail support her husband is to solely establish a distinction 327-28, of sex. App. [37 basis Md. at A.2d at 556.] only

Because that case disparate was concerned with crim inality conduct, of the unnecessary same it was for the intermediate appellate court to discuss whether the effect of impose the ERA had been to on the duty wife a of support, for the violation of which there was no criminal sanction. legislative The response to Coleman was Chapter July Acts of effective 1978. The title of that bill purpose states it is for "the of extending prohi the criminal against bition willful nonsupport spouses.” Today, to all (1957, 1976 Vol., Repl. Code Supp.), § 1980 Cum. Art. (a) applies person willfully to a neglects provide who support and maintenance "of his or her spouse ....” Because the willful failure of a wife to support her husband subject is sanction, to criminal necessarily there is duty underlying support running from a wife to her hus band. Consequently, a decision in the expand instant case to the doctrine to embrace necessaries furnished the male spouse duty will not be imposing on the female spouse. duty already there, at least statute.

That duty of support longer is no limited to the hus- band is by remedy also demonstrated the support alimony. of Today, "[i]n granting divorce, limited or absolute annulment, alimony, may or alimony court award party (1957, Vol.), 16, either . . . .” Repl. Md. Code 1981 Art. (a). § 1 remedy provided 16, § The civil under Art. 5B for spousal, child, non-support, by way of a lien

545 neutral, sexually as is earnings delinquent provider, of a Act, Support Uniform Enforcement of Reciprocal (1957, Vol.), § 2 particularly Code 1979 Art. 89C and Repl. (i). (h) and 16, 3, § time

Similarly, today, by Art. a "court from time, ... order one granting before or after the of a divorce for the reason- party pay to the other a reasonable amount necessary including money, suit attor- expenses, able costs, defending any or ney’s instituting fees and award” under proceeding, any proceeding or to enforce an alimony title of Art. 16. Rand, respect support, With to child in Rand v. 280 Md. addressed, (1977), this under the 374 A.2d 900 Court ERA, had the common apply its decisions which continued to support primarily law rule that a father is liable for of Md. notwithstanding provisions his minor children (1957, Vol., 72A, § Art. 1 Repl. Supp.), Code 1976 charged the father and mother equally which since had had with the care of their minor child and which since 1951 support extended "for of a minor child to responsibility E.R.A.” we held parents.” "Applying both the mandate ofthe ... is one parental obligation support "that the child A.2d at 905. parents.” shared both 280 Md. at family obligations support the state of Florida have action in equalized legislative been the last decade way they equalized much the same have been Maryland. In equal rights Florida an amendment Nevertheless, state proposed, rejected. constitution was but solely legislative expansion based on the obli gations sexes, Appeals to both the Florida Court of has held of her husband. that wife is liable for the necessaries Center, Manatee McDonald, Convalescent Inc. v. 392 So. 2d (Fla. 1980).4 App. conclude, Were this Court to as did court, the Florida that the non-support remedy provided by enlarged, necessaries is to be this doctrine Court would taking upon not be itself the resolution of policy a broad issue. A course in the expansion direction of of the remedies reported Family Rep. January

4. As L. 2181 of underlying family already duties of has been clearly by Assembly.5 charted and traveled General

IV A deficiency substantial which I find in the Court’s resolu- tion of expansion versus extinction issue is no con- sideration to the given is effect of the extinction choice. However, other had courts which have to decide much the here, same question presented as that have concluded to retain they the necessaries doctrine because recognized have its continued value. notes,

As the majority Supreme Jersey Court of New in Jersey Baum, Hospital Shore Medical Center-Fitkin N.J. equal 417 A.2d 1003 when faced with an protection challenge Jersey to the New common necessaries, doctrine, determined to retain albeit a modified rejected form. That court the extinction alternative sound, me, for reasons are and to compelling. various There are alternatives available estab- lishing gender-neutral payment a rule necessary expenses spouse. incurred either One to read literally alternative is the Married Woman’s Act, a N.J.S.A. 37:2-10 and 15. That act forms gender-neutral spouse scheme under which each However, independent of the other. literal applica- tion would dependent of the act leave creditors of a spouse only without recourse to the realistic source of payment, financially independent spouse. The ignore act tends to in a modern marriage wives, they husbands whether contribute services, income or a A domestic are financial unit. necessary expense incurred one spouse benefits both. In marriage, a viable husbands and wives their ordinarily distinguish do financial obli- gations on the basis of incurred the debt. which one "displaced totally may It a male is not irrelevant to note that Vol.), 88A, (1957, Repl. § 91 and homemaker” under Md. Code Art. § article. spouse” that a husband 102 of the same be “battered under the Married application literal Consequently, expecta- comport with would not Woman’s Act at wives, [Id. creditors. husbands, or their tions of 1009.] at 417 A.2d a case urged, in of Wisconsin Supreme Court common 1980, that state’s 25, to abolish decided November "con- it had lost ground on the necessaries doctrine contemporary with it "conflicts vitality” and that tinued soci- neutral and a sex of the sexes equality toward trends 114, 2d Buckstaff, 99 Wis. Furniture, v. Inc. ety.” Sharpe (1980). homemaker, wife, had a 299 N.W.2d 222 sofa. order for a signed special $621.50 in her own name a judgment A income. a substantial earned Her husband court and affirmed by trial entered the husband against by the affirmed appellate court by the intermediate equally are Court for reasons Supreme Wisconsin applicable here. doctrine opinion

We are of purpose proper and legitimate necessaries serves this The heart of law. system in our of common and support is a concern for common law rule the individual family of the the sustenance family unit The sustenance members thereof. in the importance high order of

is accorded a as a It has been codified law. scheme of Wisconsin Stats., 767.08, statutes, e.g., see sec. part of our case law. See part of our recognized it has been 335, 338, 101 Zachman, 2d 9 Wis. Zachman v. (1960). encourages rule The necessaries

N.W.2d 55 in an individual credit to those who the extension of these ability to make may not have the capacity it facilitates purchases. basic In this manner inis family unit and its function support of the laws support harmony purposes with the behind in mod- The rule retains a viable role this state. (Emphasis supplied).] em at 222 society. [Id. District Court for the Eastern

The United States District ERA Pennsylvania Pennsylvania has held that 548 including

imposes support, a sex neutral burden to the necessaries, government so that a wife was liable to her husband legal representation provided the cost of O’Neill, Supp. v. 478 F. the Federal Defender. United States (E.D. 1979). It Pa. said: govern- in favor of the reach our conclusion We ment, however, by law of applying common has a Pennsylvania. Pennsylvania, In a husband legal duty to and children. "When support his wife duty, supplies he this who necessaries neglects one to recover their cost their entitled law, which raises an action under common repay.” Jenkins implied promise the husband (1977). Jenkins, v. 371 A.2d Pa.Super. Pa.Super. Kurpiewski Kurpiewski, Equal held that the A.2d 55 the court Rights Pennsylvania Amendment Constitu- to the support. tion a sex-neutral burden of imposes a wife can liable for the costs of Therefore it is long her husband so as provided necessaries capable bearing shown is the financial she of 854.] burden. at [Id. (Tex. App. Lipshy

In v. Civ. Lipshy, S.W.2d 1975) $45,000 an the husband contended that award attorney’s wife based on fees to his in a divorce action was that, and The court held the sex the Texas ERA. violated simply recovery by a woman” preclude amendment "does not earning capacities, and that such as busi disparate factors justify recovery of opportunities ability "may ness and the by the wife.” attorney’s by an fee the husband rather than (Tex. Accord, App. Freeman, 501 S.W.2d 424 Civ. Perkins v. 1974).6 (Tex. 1973), grounds, other 518 S.W.2d 532 rev’d on ability holding consequence today’s impair of a is to Another financially legal dependent spouse has needed services. This Court obtain during previously action for representing pendency died of an held that where husband divorce, attorney reasonable fees the wife’s could recover his by assumpsit proceedings wife in the an action divorce estate, theory against on the of necessaries. the husband’s founded (1884). McCurley Stockbridge, We also held that 62 Md. 422 have prop- attorney negotiations looking represented toward a the wife in who V doctrine has the necessaries industry in which One signifi- particular been, currently, and is traditionally vitality of the continued Consequently, retailing. is cance statutes current recognition finds of necessaries to the meaningful alia, credit. Most affect, retail inter which doctrine necessaries recognition of the is the case present ERA, Assembly, adoption after Maryland General act. opportunity credit equal in this state’s pur- homemaker wife was the Historically, where the items, the husband household clothing and chaser of were charge accounts retail producer, income was the doing form of the wife. name maintained collection from legal remedy for business, ultimate the necessaries non-contracting spouse, is worthy, credit but Third Liability to Per- annotation, Husband’s An doctrine. Him, from Separated to Wife Furnished for Necessaries son practice as the common 7, 25 describes 60 A.L.R.2d follows: commonly carry the merchants

For reason some wife and in the name of the accounts family charge her, though even are addressed mail bills which only one has is the who husband they know that the and that payment to make money with money made him or with must be the payment the fact practice, him. In view of this supplied by are is thus carried and the bills that the account issue, rendered, some evidence on the thus while the merchant necessarily establish that does rely on the credit of the husband. does not customers credit '[m]ost that" consumer The "reason” was usually based women, married woman’s account are but a ” Money Hoffman, in the Sex the of her husband.’ on credit erty agreement to fruition separation did not come settlement and based in an action fee for those services was entitled to recover a reasonable Melnicove, 218 against Weiss on Md. necessaries doctrine the husband. the (1959). remedy longer exists. That no 147 A.2d 763

Market, quoting L.F. 135 Prentice-Hall Con- (1971). Service and Commercial Credit sumer A. Bingaman, writing 1975 in 3 Pepperdine Law Review 26 "The Impact Equal Rights Amendment on Married Women’s Financial Rights” Individual furnishes the following description of credit extension practices in states having separate property, opposed to community property, laws: If the separate jurisdiction wife property —

not employed over percent of wives are —not she only obtain credit in one or two ways. In all credit except transactions with those merchants, retail her husband must sign agreement stating that he any will pay debts she incurs. The credit hers, so obtained will then be not but her husband’s.

The second of obtaining means credit for such only by wives is used retail who, merchants under circumstances, certain will open accounts for the wife for purchase alone of "necessaries.” Under law, common and today, the doctrine of "necessaries” supplements duty husband’s support by allowing merchants to extend credit to a wife goods purchased without consent of a husband and to hold the pur- husband liable for the However, chase price. because doctrine is legal uncertainties, hemmed with any individual may justifiably creditor refuse credit extend under doctrine, thereby leave unemployed separate wife in a property jurisdiction — only with one of obtaining means credit express agreement of her to pay any husband debts wives, created. For such majority who are the married States, women in the United Equal Credit Opportunity giant Act is hardly step for- fact, ward. In it represents them only a small advance in the crucial matter equal of obtaining (Footnotes omitted) [Id. credit. at 31 (Emphasis supplied).] accommodates, Opportunity Credit Act Equal

The Federal of, utilization state thereby acknowledges present (b) (1) § laws. Title 15 U.S.C. necessaries provides inquiry an it is not discrimination for a creditor "to make if is for the purpose status such of ascer inquiry marital applicable to the taining rights the creditor’s and remedies not to discriminate in a particular extension of credit and It of credit-worthiness.” is clear under determination federal necessaries law into law that a creditor can take state asset, account, liability potential or as a potential either as a credit, considering application particularly an where (c). B, § 202.5 application governed by Regulation See Miller, Opportunity Maltz and The Credit Act and Equal (1978).7 B, Regulation 31 Okla. L. Rev. 16-17 significantly, Maryland Equal Opportu- More Credit nity Act was adoption Maryland enacted after the Article, ERA. Section 12-705 of the Commercial Law paragraph prohibits any "[r]equest for or consideration of rating applicant’s the credit of an spouse appli- where the cant is worthy otherwise credit applying joint is not for a account” unless one of the following three alternatives is met: "[T]h.e

1. applicant lists credit references in the

name of the spouse ..or 2. applicant "has no prior individual credit his-

tory”; or "[T]he permits applicant desig- creditor

nate applicant’s spouse as an authorized purchaser on the account.”

This paragraph deals exclusively applications with for other joint than accounts. That non-applicant means that spouse, whose credit be under the three considered statutory exceptions general prohibition, spouse to the is a who will not contractually every purchase liable for 7. The authors to deter- note that the creditor can obtain the information applicability only indirectly mine the governed in cases of a necessaries individual, by Regulation B, (c), dealing § 202.5 with the application. unsecured account

on the account. Thus the second exceptions first and are unmistakably legislative recognition of the necessaries only purpose doctrine. The expressly permitting a cred itor to obtain information on the credit worthiness of the spouse of an applicant, where the applicant seeks individ ual applicant’s account and the spouse is not to anbe autho rized purchaser, is because may ultimately the creditor realize on the of the applicant’s spouse. assets Inasmuch the absence joint liability of applicant’s a spouse is given, remedy by which those can assets be reached must be the necessaries doctrine.8 of

Section 12-705 Law Commercial Article manifests that the Assembly General considers necessaries doc- trine to adoption have survived of the ERA. Because the only by doctrine can expansion survive the ERA to a sex form, legislative neutral policy determination which the majority already has seeks been made.

VI There are at least two interests involved this case. One is the interest a against possible retrospective imposition liability worthy on may credit wives whose credit have been effectively past if pledged expanded transactions necessaries were in rule effect. The other is the interest against extinguishing remedy a for which other courts my have concluded should be retained. view both by can these interests be harmonized retention of the basis, an expanded necessaries doctrine on but with the expanded remedy operating prospectively.

Decision of this case need predicated not be on the direct operation of policy the ERA. But the of that constitutional amendment, Maryland statutes enacted in past exception, dealing spouse, The third with use the account may third proceeding premise. be viewed as from a different One rationale for the exception may non-applicant spouse purchases be that a who makes directly quantum on the account will be liable to the creditor a meruit particular purchases pos- basis for the made individual. Another explanation exception purchase sible separate user of the the third each is that such directly express against transaction enforceable as an contract account, that that so individual’s credit considered. decade, family support obligations which have made mutual opportunities men, and credit for women equal with reflect clearly to me that longer the common law ofnecessaries is no only pledge limited to a of the husband’s credit.

In this respect, recognition of the expansion of this common remedy would be similar to this Court’s deter- years mination 14 ago that the common law rule under which a woman legal remedy had no loss consortium was no longer limited, so action, and that an jointly with her husband, could be maintained. Deems v. Maryland Western (1967). Ry., 95, 247 Md. 231 A.2d 514 I apply would a holding that the necessaries rule is expanded only to transactions entered into after the date of mandate, see Huson, Chevron Oil Co. v. 97, 404 U.S. 349, S. Ct. 30 L. Ed. 2d 296 but I give would Hospital the benefit of the new rule. See Schiller v. Lefkowitz, 242 n.1, 466 & 219 A.2d 380-81 & n.1, denied, cert. 319, 17 385 U.S. 87 S. Ct. L. Ed. 2d 226 (1966).

Under an expanded rule, necessaries summary judgment (See I). the Hospital was improper. Part I would reverse and remand.

Judge Davidson has authorized me to state that she con- curs in the expressed views in Parts I-IV and of this VI dissenting opinion.

Case Details

Case Name: Condore v. Prince George's County

Court Name: Court of Appeals of Maryland

Date Published: Feb 19, 1981

Citation: 425 A.2d 1011

Docket Number: [No. 6, September Term, 1980.]

Court Abbreviation: Md.