delivered the opinion of the Court.
On June 30, 1958, William H. Donovan was operating a motor vehicle in a southerly direction on U. S. Route 13, a public highway, in- Somerset County, and his wife was accompanying him as a passenger. Sidney B. Ennis was driving his car in an opposite direction, and the two vehicles collided. Mrs. Donovan died a few days thereafter allegedly as a result of injuries received in the collision.
Suits were instituted against Ennis in the Circuit Court for Somerset County, all alleging that his negligence caused the accident, without any negligence by either Mr. or Mrs. Donovan contributing thereto: one (1) was by Donovan as administrator of his wife’s estate; one (2) by Donovan, individually, for his personal injuries and damages to his car; and another (3) by the State to the use of Donovan under the provisions of Code (1957), Article 67.
In case (2) above, Ennis filed general issue pleas and a counterclaim against Donovan. The case has not been tried, and is not involved in this appeal.
In cases (1) and (3), Ennis filed general issue pleas and third-party claims, pursuant to Rule 315, which alleged that Donovan, “is or may be liable to this defendant (Ennis) for all or a part of the plaintiff’s said claim.” Demurrers were filed to both of the third-party claims on the ground that at the time of the alleged tortious act of the third-party defendant, he and the deceased, Mary J. Donovan, were husband and wife; and, being thusly related, the wife could not have sued him had she lived, nor can her personal representative sue the surviving husband, as there is no civil right of action *539 for personal injury between husband and wife during coverture. The trial court sustained the demurrers in both cases, without leave to amend, and Ennis has appealed. No procedural question is raised by the appellant.
It will be noted that one case is based upon Code (1957), Article 93, Section 112; the other upon Article 67 of the same Code. Section 112 provides that administrators, “shall have full power to commence and prosecute any personal action whatever * * * which the testator or intestate might have commenced and prosecuted, except actions of slander * * *,” and Article 67, Section 1, states that whenever the death of a person shall be caused by wrongful act, neglect or default, and “the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the vessel or person who would have been liable if death had not ensued, * * * shall be liable to an action for damages, * * (Italics supplied.) Due to the similarity of the italicized portions of the statutes, the two cases may be considered together.
The appeal turns upon whether or not Mrs. Donovan, the plaintiff’s decedent, could have “maintain [ed] an action and recover [ed] damages” against the third-party defendant, her husband, on account of his negligent operation of his automobile. This is so because the right, if any, of Ennis, the defendant, to contribution from Donovan, the third-party defendant, is a derivative right and not a new cause of action.
Baltimore Transit Co. v. State,
This brings us to a consideration of the pivotal question in the appeal. The appellant concedes that “at common law there is no right in a married woman to sue her husband in tort.” He argues, however, that the underlying reason for the rule, namely, “that it would introduce into the home, the basic unit of organized society, discord, suspicion and distrust” is not present in the instant case as Mrs. Donovan is dead; and, therefore, the rule should not be applied. As pointed out in 43 A. L. R. 2d at page 651, the Courts, in adhering to, or rejecting, the common-law rule of spousal immunity from personal injury action because of the husband-wife relationship, have given various reasons for their holdings ; but the difference in result, usually, is due to an interpretation of the applicable married women’s acts. It would therefore, be of little use to discuss elaborately the ruling of the Courts elsewhere. 2
A case in Pennsylvania,
Johnson v. Peoples First Nat'l Bank & Trust Co.,
Maryland, however, has adhered to what is the majority view in this country,
i.e.,
that at common law the wife had
no cause of action
against her husband for negligent personal injury, and our so-called Married Women’s Act [Code (1957), Article 45, Section 5] conferred no such right.
Furstenburg v. Furstenburg,
The
Furstenburg
case was followed by
David v. David,
“* * * So that, in this state, in an action by a married woman against her husband, based upon loss or damage occasioned by his negligent or wrongful act, her coverture at the time of the tort is a complete bar to the action, not because she was a married woman at the time of the tort, but because she was at that time married to the defendant; the effect of the Married Woman’s Acts in this state, as construed in Furstenburg v. Furstenburg, supra, being merely to remove the disability which at common law prevented a married woman from suing in tort in her own name, but not to create in such cases as this a cause of action where none existed before.” (Italics added.)
See also
Riegger v. Brewing Company,
In
Gregg v. Gregg,
The same argument advanced by the appellant here—that after the husband-wife relationship is broken up, or discord, suspicion and distrust have entered the home, it is idle to say that one of the parties should .not be allowed to sue the other for fear of disrupting a home that has already been disrupted •—-was advanced and rejected in both the Gregg and Fernandez cases, supra.
Following the same reasoning as that stated in the
Johnson
case, supra,-—that when a husband negligently causes injury to his wife a cause of action arises, but its enforcement is prevented on the ground of public policy—the Superior Court of New Jersey, Law Division, permitted a deceased husband’s administrator to be impleaded as a third-party defendant in the wife’s suit against the operator of a motor vehicle that had collided with the husband’s automobile, in which the wife was a passenger.
Long v. Landy,
From what we have said above, it is seen that this Court has flatly held that a married woman had no common-law *543 right to sue her husband for injuries suffered by her as the result of his negligence, and, the Legislature has not yet seen fit to grant her such a right. It has also stated that if this disability is to be removed, it must be done by the law-making branch of the government. We can only repeat that if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts.
This leaves two subsidiary questions to be answered. The appellant mildly suggests that Rule 315 is broad enough and was intended to be such that “a wife could indeed sue her husband in tort.” In other words, he argues that Rule 315 is broad enough to create a substantive right in a wife to sue her husband in tort. The substantive right to contribution is conferred by the Legislature in Code (1957), Article 50, Section 17. Rule 315 of this Court does not even purport to grant substantive rights, but sets forth the procedure and remedies for the enforcement of such rights.
O’Keefe v. Baltimore Transit Co.,
Finally, the appellant argues that “to relieve the third-party defendant from liability” in these cases would allow him an opportunity “to profit by his own wrong, contrary to a basic premise of our law.” If this be so, it may be a strong reason in favor of a legislative change, but it cannot create a right of action where none exists.
Order affirmed, with costs.
Notes
. Chief Judge Niles and Judge Frank, respectively, applied the rule in Eisner v. Saxon, Daily Record, March 14, 1955, and Kovitz v. Neumann, Daily Record, April 24, 1942.
. There is a very interesting and instructive essay upon the subject of interspousal liability or immunity from suit for torts in “Selected Essays on Family Law” beginning at page 396; see also 43 A. L. R. 2d 632.