16 A.2d 99 | Md. | 1940
Is a husband's employer liable to an employee's wife for injuries sustained by her as the result of her husband's negligence while acting within the scope of his employment? This question, which the parties to this appeal agree was raised before the lower court and by that tribunal answered in the negative, must now be determined by this court for the first time, and is raised by this appeal of the plaintiff below from a judgment entered by the trial court after sustaining, without leave to amend, the demurrer of the appellee (defendant below) to appellant's declaration.
At the outset it is proper to state that the authorities in many jurisdictions of the United States where the question has arisen are conflicting, and the adjudications sustaining liability rest in many instances upon different grounds. In some states liability has been declared to exist because of legislative enactments that were held to have removed the common law disabilities of the wife. Thus in Alabama, Connecticut, New Hampshire, West Virginia, and Wisconsin, a wife may maintain a direct action against her husband for injuries sustained through his negligence. In a Florida case (Webster v. Snyder,
There are, however, decisions in many states answering the question in the affirmative. See Schubert v. Schubert WagonCo.,
Of the last cited authorities, perhaps that of Schubert v.Schubert Wagon Co., supra, is most often quoted. That decision affirmed the ruling of the Appellate Division, which is reported in
The New York Court of Appeals, in an opinion by Chief Judge Cardozo, rejected the holding of the highest courts of Iowa, Michigan, and Nebraska, stating that under the New York Domestic Relations Law, Consol. Laws, ch. 14, sec. 57, a married woman had a right of action for personal injuries against her husband's employer, and the disability of spouses to maintain an action against each other was an exception engrafted upon that rule "by authority and tradition." It was further stated that the argument for non-liability to the wife of the husband's employer for negligence of the husband was to confuse culpability with liability. Such a contention, however, avoids the fact that liability and not culpability is the true basis for the doctrine of respondeat superior. United Transportation Co. v. Jefferies,
The argument for liability, upon the basis of the weight of authority, rests mainly upon the above cited decisions, plus the further fact that it is supported by the Restatement. Such an argument loses much force when the decisions are closely examined, since they follow the reasoning of Schubert v.Schubert Wagon Co., supra, holding (a) that in some of the states married *521 women's acts permit such actions, or (b) that the common law is archaic, or (c) that the Restatement (section 217, Comment "b"), which apparently follows the Cardozo decision, correctly states the law.
In Maryland, our married women's acts have not been interpreted as entirely abrogating the common law. See Furstenburg v.Furstenburg,
Professor Casner, annotating the Restatement of the Law of Agency, section 217, Comment "b", while conceding that this court has not extensively discussed the problem, states that indications from existing decisions are "in accord" with the principles of the Restatement (Md. Annot. Restatement Law ofAgency, page 123), but the decisions cited and discussed by him would not seem to justify his conclusion, for generally speaking they are assault and battery cases involving railroad companies, and in all of them this court held it to be the duty of the trial court to determine whether the servant was acting solely as a police officer or solely as a servant of the carrier. See Balto. O.R. Co. v. Deck,
The court, in Furstenburg v. Furstenburg, supra, construing Code, art. 45, sec. 5, held that a wife could not maintain an action against her husband for a personal tort. In that opinion the decision of Thompson v. Thompson,
Subsequently, in David v. David, supra, we held that a married woman could not maintain an action to recover for personal injuries against a partnership of which her husband was a member. It was there said, "The rule *522
at common law is that a married woman cannot maintain an action against her husband for injuries caused by his negligent or tortious act. 30 C.J., `Husband and Wife,' secs. 317, 675. The reason usually given for that rule is the presumed legal identity of the husband and wife (Ibid: Philips v. Barnet (1876), 1 Q.B.D. 436) and some confusion has arisen from the adoption of legislation which has had the effect of partially dissipating that fiction, by permitting suits between husband and wife to enforce contractual liabilities, by according to each the same rights and privileges in respect to property they would have if unmarried, by permitting the wife to carry on a trade or business, and to receive and enjoy her earnings from any source as freely as if single, and to sue in her own name for torts against her. Coincident with the widening scope and extent of such legislation, there has been a determined effort to have it construed so as to permit actions between husband and wife for damages resulting from some wrongful or negligent act of the defendant, and in some jurisdictions it has been so construed (Johnson v. Johnson,
It is thus observed that we have held, not only that a wife cannot maintain an action against her husband for personal injuries, but as well, upon similar reasoning, that no liability to her exists from a partnership of which her husband is a member, even when the negligence causing her injuries was that of an employee of the partnership. We have also held that a parent cannot maintain an action against his child for personal injuries caused by the negligence of the latter. Schneider v. Schneider,
If in the present case we follow the reasoning of those decisions, it would seem illogical to hold that the husband's employer is liable to appellant under the circumstances shown by the declaration, for no right of action is permitted by the wife against her husband, and the wife's right of action against appellee must arise solely because of the negligence of its agent (in this case her husband) acting within the scope of his employment. To hold that the employer is liable because of the acts of its agent against whom no liability exists in favor of the person injured would result in holding appellee liable notwithstanding her inability to have legal redress against the person causing her injuries. Such a holding would, in our opinion, be entirely inconsistent with the rule in Maryland to the extent it has been declared by our previous decisions, and the result would be to permit the wife to do indirectly what admittedly she may not do directly.
In addition to the Maryland cases already cited, see Wolf v.Bauereis,
Furthermore, if appellee is liable to the wife, it may sue and recover against her husband, the actual wrongdoer. Chesapeake O. Canal Co. v. Allegany County,
The same reasoning was given in Emerson v. Western Seed Irrigation Co.,
And in many other jurisdictions not previously considered in this opinion, the rule denying liability to the wife as against her husband's employer for injuries caused by the negligence of her husband has been followed. Maine v. James Maine Sons Co.,
In the case last cited a statute very similar to our own (Code, art. 45, sec. 5) was construed, and in the course of that opinion the court said: "This statute, being in derogation of the common law, has been construed strictly. `The provision * * * authorizing a married woman to prosecute suits at law in her own name, as if unmarried, refers to those by the wife against third persons, * * * and not to those against her husband.' * * * *525 `It relates to cases when, by the very assumption, the husband may be a party with the wife, or may not, at her election.' * * * And: `It only authorizes her to maintain alone such actions as previously could be sustained when brought by the husband alone or by the husband and wife jointly. It enlarges not her right of action, but her sole right of action. It does not enable her to maintain suits which could not have been maintained before, but to bring in her own name those which before must have been brought in the husband's name, either alone or as a party plaintiff with her.' * * *"
In conclusion, it may be said that whatever the rule is elsewhere upon the subject, the logic of the decisions which deny liability seems to us to be more consistent with the views heretofore expressed by us in cases (a) denying the right of a wife to maintain a suit similar in character to the one under consideration against her husband, (b) holding that she has no right of action for similar injuries against the partnership of which her husband is a member, and (c) holding that a parent cannot enforce such an action against his child. Indeed, the reasoning of those decisions would seem logically to commit us to the further step of holding that, under the circumstances considered, a right of action in favor of the wife against the employer does not exist.
It follows that the action of the trial court was correct in sustaining, without leave to amend, the demurrer to appellant's declaration and that the judgment appealed from must be affirmed.
Judgment affirmed, with costs. *526
