Digital Commons @ UM Law

Maryland Law ReviewVolume 1 | Issue 1 Article 10Book ReviewsFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Agency CommonsThis Book Review is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationBook Reviews, 1 Md. L. Rev. 99 (1936)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss1/10Book ReviewsMARYLAND ANNOTATIONS TO THE AMERICAN LAW INSTI-TUTE'S RESTATEMENT OF THE LAW OF AGENCY. Prepared byA. James Casner, under the auspices of the Maryland Stateand Baltimore City Bar Associations. Published by theAmerican Law Institute Publishers, 1936, pp. vi, 315.As is now well known, the American Law Institute hasbeen engaged since 1923 on the task of preparing and pub-lishing a "Restatement" of the Common Law as existing inthis country. For this purpose it has enlisted a large andrepresentative group of judges, practicing lawyers and lawschool teachers in its body. It has been enabled to prose-cute so great an undertaking by liberal appropriations fromthe Carnegie Corporation. The results of its labors are be-ing published in the form of "Restatements" of dlifferentbranches of the common law. These publications presentin the form of black-letter text, comments, illustrations andnotes what, after lengthy study and investigation, has beenadopted by the Institute as a sound statement and analysisof the rules of the common law on the subject in question,drawn from the decisions of the courts of all of the States.Such Restatements however are not supported by cita-tions of the authorities; and do not, in most cases, wherethere is a difference among the courts of this country uponany of the points in question, undertake to give the conflict-ing decisions thereon.It has been planned, however, that there should be pub-lished, as supplements to these Restatements, annotationsthereof for each State, presenting the decisions of suchState which support the conclusions of the Restatement;and, in cases where courts of the state have adopted a differ-ent position, clearly setting forth the extent of such dis-agreement. It is hardly necessary to say that the utility ofthe Restatements to a practicing lawyer, or to a law teacher,will be immensely increased by having available such a sup-plement, containing in substance a digest of the decisions ofthe local state on every part of the subject, and clearly di-BOOK REVIEWSrecting attention to the fact whether or not the view adoptedby the Institute as to what is the accepted or better rule,has been also adopted, or dissented from, by the courts ofthe state.Among the topics covered by the Restatements now pub-lished by the Institute is that of Agency. With the help ofappropriations made by the Maryland State and BaltimoreCity Bar Associations, Maryland annotations to a numberof these subjects have been for some time in course ofpreparation. The first compilation of these to be completedand published is that on the subject of Agency, which hasbeen prepared by Professor Casner (lately of the LawSchool of the University of Maryland and now of the Col-lege of Law of the University of Illinois) with the assistanceof a number of workers such as is necessary for so laboriousa work.It should be a matter of great satisfaction to those whoare interested in the carrying on of this work, that Pro-fessor Casner has produced such an excellent compilationand that the first of these local annotations published forthis State should be so well done. The arrangement, ofcourse, follows that of the Law Institute's Restatement, andthe text is in the form of local notes to each successive sec-tion thereof. These not only state the decisions which sup-port the detailed statements in the section annotated, butalso give wherever necessary the gist of the local decision.They of course call attention to any apparent conflicts, withadequate, though necessarily concise, explanation and dis-cussion.Dr. Johnson facetiously included in his definition of alexicographer, that he was a "harmless drudge". Whileundoubtedly much drudgery must have gone into the prepa-tion of a work of this character, yet even a cursory examina-tion of Professor Casner's text shows how much scope isgiven for qualifications of a much higher order. There areapparent critical appreciation and distinction in dealingwith the mass of authorities; clear, concise and incisive pre-sentation of their substance; grasp both of the generalsubject dealt with and of the method of treatment and sub-100MARYLAND LAW REVIEWdivision used in the Institute's Restatement; and a justsense of proportion in deciding just where explanation andquotation are called for in reducing so large a mass of mate-rial to a concise yet adequate whole.It is reassuring to find how general is the agreement asto the law upon this particular subject of agency betweenthe conclusions adopted by the Institute and the decisionsof our own Court of Appeals. In practically no case doesthere appear to be any wide difference between them. Inmany cases the Restatement pursues the subject into spe-cial situations which our Court of Appeals has not had, asyet, occasion to consider; and in one or two cases, on the,contrary, questions have been considered by it which involvedistinctions beyond those dealt with in the Restatement.-CHARLES McH. HOWARD. *LAW AND THE LAWYERS. By Edward Stevens Robinson.New York. The Macmillan Company. 1935. pp. xi, 348.Four years ago, Professor Robinson and ProfessorThurman W. Arnold inaugurated a joint seminar at theYale Law School. The enterprise attracted considerableinterest in law school circles, because while ProfessorArnold is a teacher of law, Professor Robinson is a teacherof psychology. A quarter of a century earlier the late Pro-fessor Munsterberg, in a vigorous, if ill advised (as it subse-quently developed) book On the Witness Stand, had soundlyberated the legal profession for its failure to utilize psycho-logical knowledge in the functioning of the judicial process.The reply of.the legal profession, led by Professor Wig-more, was so crushing that no other psychologist dared en-tertain similar thoughts, at least in public, for fully twenty-five years. Under the progressive leadership and protec-tion of the Yale Law School and Professor Arnold, psy-chology now reappears on the legal scene in the form ofProfessor Robinson's book--the fruit of the joint seminar.It is a companion volume to Professor Arnold's Symbols of* Of the Baltimore City bar. Member of the Faculty Council, Universityof Maryland Law School.BOOK REVIEWSGovernment, also the product of the seminar, but with itsmaterial treated primarily from the standpoint of the legalscholar.Professor Robinson's book is, in essence, a plea for co-operation between law and psychology. It should not beconfused with the meretricious and well advertised workswhich offer to teach the trial lawyer the basic principles ofpsychology as an aid in the examination of witnesses. It isa sober, informed study of the legal process by a competentpsychologist and as such it is the most noteworthy volumeof its kind which has yet appeared.Nevertheless, for all its merits, the book in its generaltheory has serious drawbacks. Professor Robinson'sfundamental notion is "that every important legal problemis at bottom a psychological problem".' It is a commonfailing of the students of the separate sciences that eachlikes to believe his own particular field of study is basic toall other knowledge, but it is a failing which today at anyrate is not customarily paraded in public. Professor Rob-inson's argument in support of his position is that "law isconcerned with the regulation, mitigation and compositionof human disputes. The fundamental stuff with which itdeals is therefore psychological. Bodily welfare, money,contracts get into the realm of law only by becoming mattersof behavior, feeling, thought, belief; it is of these latter thatdisputes are made".' Professor Robinson here arbitrarilyadopts the view of the so-called realists that "law" is whatofficials do about "disputes"; no attempt is made to showthe psychological basis of "law" in the senses in which it isemployed by the radically differing analytical, historicaland philosophical schools. Moreover, even adopting Pro-fessor Robinson's view of law, it does not follow that alljuristic problems are ultimately psychological. All the so-cial sciences study human behavior, but they study it eachfrom a separate point of view. At the present time it ispremature to assume that any particular point of view isfundamental and the others derivative. We have no knowl-edge at all upon which such an assumption can rest.IP. 51.OP. 72.MARYLAND LAW REVIEWProfessor Robinson's next general notion is that thespecific contribution of psychology to law lies in its pointof view, its "persistent intellectual curiosity" about humanbehavior He expressly rejects the notion that the contri-bution of psychology lies in the "knowledge" or "psycho-logical laws" which it establishes. This contention is asextraordinary as the preceding one. The intellectual curi-osity of psychology with respect to human behavior is nodifferent, in kind or degree, from that of any of the othersocial sciences. The justification of all science is that itgratifies our intellectual appetites; the mainspring of itsaction is intellectual curiosity and only secondarily the pos-sibility of fruitful application. To assert that the "intel-lectual curiosity" of psychology is its specific contributionto law is a statement devoid of all meaning. What reasonhas Professor Robinson for assuming t!Lat legal research isnot prompted by "intellectual curiosity" about human be-havior as it manifests in the legal process? There doesindeed seem to be a confusion in Professor Robinson's ownthought, for later he recognizes the necessity of legalstudents acquainting themselves with "knowledge of theprogress of psychological investigation" 4 although he beganby rejecting the notion that the law should utilize the estab-lished findings of psychology. He insists for example thatit is essential that a naturalistic jurisprudence take cog-nizance of Ebbinghaus' researches on memory; otherwise,the rules governing the admission and exclusion of testi-mony are apt to be without any empirical foundation. Here,in the knowledge which it establishes, would seem to lie thereal contribution of psychology, and not in its so-called "in-tellectual curiosity".With his general notions out of the way Professor Robin-son next proceeds to a more detailed discussion of thejudicial process in the light of the facts established by mod-ern psychology. Here his analysis is shrewd and informed.Its greatest weakness perhaps is that it is not systematic.The points he chooses for discussion are apparently selected$Pp. 99, 118-121.' P. 118.104 BOOK REVIEWSat random, but no doubt this is inescapable in the presentdevelopment of psychology. It is discussion of the char-acter which Professor Robinson carries on in this part ofhis book which will lead to improvement in legal technology.Contributions of this type from students of the other socialsciences are a prime necessity of legal administration at thistime. Professor Robinson deserves the gratitude of theprofession for his initiation of the discussion.-HUNTINGTON CAIRNS.'* Of the Baltimore City bar. Lecturer on Taxation, University of Mary-land Law School.

Book Reviews

Proper Venue of Suit for Alimony Without Divorce - Ouster of Jurisdiction - Amendment - Woodcock v. Woodcock

Lentz, William

Revocation of a Will by Birth of a Child

Maryland Law ReviewVolume 1 | Issue 1 Article 9Double Liability of a Bank Stockholder for a Debtof the Bank Incurred Before His Ownership of theStock - Ghingher v. BachtellFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Bankruptcy Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationDouble Liability of a Bank Stockholder for a Debt of the Bank Incurred Before His Ownership of the Stock - Ghingher v. Bachtell, 1 Md. L.Rev. 95 (1936)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss1/9MARYLAND LAW REVIEWute of 1935) which alone is effective to enable the scalingdown of the obligations of its political sub-divisions, Thatthe State could not directly authorize this is clear.17DOUBLE LIABILITY OF A BANK STOCKHOLDERFOR A DEBT OF THE BANK INCURRED BE-FORE HIS OWNERSHIP OF THE STOCK-GHINGHER V. BACHTELL'Appellant, receiver of an insolvent bank, petitioned thetrial court for an order adjudging that the stockholders, in-cluding the appellees, should be required to pay to the re-ceiver sums equal to the par value of the stock held, underthe "double liability" of stockholders in State banks. Thetrial court passed a summary order to that effect, whichorder the appellees petitioned to have rescinded. The pe-tition for rescission specifically contested the liability of thestockholders for such debts of the bank as were incurred attimes when the petitioners were not then stockholders. Thispetition alleged "That the statutes of Maryland under andby virtue of which said order of assessment was passed, im-pair the obligation of contracts, are discriminatory and de-prive your petitioners of equal protection of the law, de-prive your petitioners of property without due process oflaw, and otherwise contravene the provisions of the Consti-tutions of Maryland and of the United States." The trialcourt granted the petition for rescission of the summaryorder and the receiver appealed. Held: Decree reversedand cause remanded with costs to the appellant.The ruling of the trial court limited the double liabilityof stockholders at the time of receivership to debts of thebank contracted during the period of such stock ownership.The ruling of the Court of Appeals held them liable for alldebts of the bank regardless of when such debts were in-curred.Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529 (1819).164 Md. 678, 182 Atl. 558 (1936). Appeal pending in the Supreme Courtof the United States, No. 298, October Term, 1936.CASENOTES AND COMMENTSPrior to 1851 there was no "double liability" of bankstockholders. The Constitution of 1851,2 the Constitutionof 1864,3 and the Constitution of 1867,' all provided for it.The last named constitutional provision has now been re-pealed by vote of the electorate at the November, 1936, elec-tion in passing on a proposed constitutional amendment tothat effect., In addition to the constitutional double lia-bility of bank stockholders, there is a statutory double lia-bility of stockholders in trust companies, going back to1892,6 and a statutory double liability for bank stockholdersdating from 1910.1The Court pointed out that prior to 19048 in the case oftrust companies and prior to 1910' in the case of banks thedouble liability was enforced by a direct suit between thecreditor and the stockholder. It is only since those datesthat there is provision for the receiver's collecting thedouble liability from the stockholders and holding it for thebenefit of the creditors generally. Today the practice underthe statutes of 1904 and 1910 makes it clear that the stock-holder's double liability constitutes an asset of the bank,rather than an obligation to the creditor as such. TheCourt pointed out that, with reference to banks, prior to1910 there had been provided no-statutory method of en-forcement of the Constitutional liability. So it was thatthe law worked out a fictional contract between creditor andstockholder, in order to support the action brought by theformer against the latter.When the double liability had to be enforced on the basisof a contract between stockholder and creditor, it was obvi-ous that there could be such a contract only if the stock-holder was such at the time the debt between creditor andbank was incurred. So it was, that prior to 1910, bankstockholders were doubly liable only for debts incurred at2 Art. III, Sec. 45.Art. II, Sec. 38.'Art. III, Sec. 39.6 See a comment on this In the editorial section, supra, of this number ofthe Review.6 Acts, 1892, Ch. 109.'Acts, 1910, Ch. 219.8Acts, 1904, Ch. 101.9 Acts, 1910, Ch. 219.MARYLAND LAW REVIEWthe time they were stockholders. But the court pointed outthat the change made by the statute of 1910 which em-powered the receiver to collect from the stockholder andmade the liability an asset of the bank resulted in the stock-holder's being liable to the full extent of his double liability,if necessary, even though some of the proceeds were to beapplied to debts of the bank incurred before he became sucha stockholder, or at a time when he was not a stockholder.The Court pointed out that adoption of the rule con-tended for by the stockholders would lead to innumerablebookkeeping difficulties in its application.The Court rejected the contention that, as to stock-holders who became such prior to 1910, the change of thatdate was unconstitutional as depriving creditors of theirdirect remedy against the stockholder. But it was pointedout both that the legislature had reserved existing rights inthe Act of 1910 and that, even if it had not, there is no vestedright in a remedy so long as one of substantially equal effectis substituted. Another minor point in the case was as tothe right of stockholders who were also depositors to set offtheir deposits against their double liability. The Courtruled that this could not be done.Aside from the minor constitutional point mentioned inthe preceding paragraph, the Court did not go at all intothe constitutionality under the United States Constitutionof imposing upon a stockholder double liability for a debtof the bank incurred at a time when he was not such a stock-holder. The Court put its decision entirely upon an inter-pretation of the Maryland constitutional provision fordouble liability and of the statutes passed thereunder. Inview of the fact that the case interprets a provision of theMaryland Constitution it must be taken that there is im-plicit in the decision that it does not violate the MarylandConstitution to impose liability for debts incurred at a timewhen the stockholder was not such. But there is left un-answered whether this step violates the Constitution of theUnited States with respect to those parts thereof set out bythe stockholders in their petition.CASENOTES AND COMMENTSThe Review is informed that an appeal to the SupremeCourt of the United States has been entered in the principalcase and in its companion case.' ° In view of the policy ofthe Review of not commenting on trial court cases until itis certain that no appeal will be taken, nor on Court of Ap-peals cases known to have been appealed to the SupremeCourt, the Review will refrain from comment on the instantcase until the appeals are decided. For the present theReview will content itself with the above summary of thefacts and opinion.It was felt desirable to call the attention of the readersof the Review to the case for two reasons. One is the im-portance of the subject in the light of the large number ofbank failures in the recent business depression. The otheris because of the fact that the constitutional provision fordouble liability has recently been repealed by the voteof the electorate. Thus it is that in the future suchcases cannot so frequently arise. But, no doubt, it will besome time before questions of double liability arising frombank failures before the repeal will be finally settled. Then,too, it is an open question whether the repeal of the doubleliability may be applied retroactively to banks which do notbecome insolvent until after the repeal, with reference todebts incurred by the bank prior thereto. Finally, the re-peal of the double liability clause will not be effectual untilthe legislature follows up the vote of the electorate in re-pealing the constitutional provision with a repeal of thestatutory provision," which of its own force also imposesdouble liability on bank and trust company stockholders.Thus for these reasons the Review and, no doubt, its readerswill await with interest the ultimate decision of the case ofGhingher v. Bachtell in the Supreme Court.1O Ghingher v. Kausler, 169 Md. 696, 182 At. 566 (1936), No. 299, OctoberTerm, 1936, Supreme Court of the United States."Md. Code, Art. 11, Sec. 72.

Double Liability of a Bank Stockholder for a Debt of the Bank Incurred Before His Ownership of the Stock - Ghingher v. Bachtell

Contract for Lifetime Employment Held Void for Indefiniteness of Subject Matter - Baltimore and Ohio Railroad Company v. King

Maryland Law ReviewVolume 1 | Issue 1 Article 5Tort Suit by Wife Against Husband's Partnership -David v. DavidFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Torts CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationTort Suit by Wife Against Husband's Partnership - David v. David, 1 Md. L. Rev. 65 (1936)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss1/5Casenotes and CommentsTORT SUIT BY WIFE AGAINST HUSBAND'SPARTNERSHIP-DAVID V. DAVID'Plaintiff-appellant-wife brought an action against de-fendant-appellee-partnership for personal injuries sus-tained while upon the defendant's premises for businesspurposes. Defendants filed the general issue plea and aspecial plea setting up the marriage relation between theplaintiff and one of the members of the defendant part-nership. Plaintiff's demurrer to the plea was overruledand a judgment of non pros was entered. On appeal theprincipal question was whether a married woman is en-titled to maintain an action for negligence against a part-nership when at the time of the negligent act her husbandwas a member of the partnership. Held: Judgment af-firmed. Since a married woman cannot maintain an actionin tort against her husband, she cannot maintain such anaction against a partnership of which her husband is amember. The same public policies control in the two cases.It was well settled at common law that a married womancould not sue her husband either in contract or in tortbecause of the existence of the marital relation.2 Nor couldshe sue her husband's partnership because the partner-ship under the common law theory was considered an ag-gregate of individuals,' and under the rule of joinder ofparties4 the husband would have to be made a party de-fendant although it was also necessary for the husbandto join the wife as co-plaintiff.5 Were this allowed, the rulethat a party cannot appear on both sides of the recordOwould be violated.In 1898 the Maryland legislature passed the MarriedWomen's Act7 which permits married women to sue either1161 Md. 532, 157 At. 755, 81 A. L. R. 1100 (1931).2 Barton v. Barton, 32 Md. 214 (1869).3 McLane v. State Tax Comm., 156 Md. 133, 143 Atl. 656 (1928).Smith v. Crichton, 33 Md. 103 (1870).Sanarzevosky v. City Passenger Ry. Co., 88 Md. 479, 42 Atl. 206 (1898);Treusch v. Kamke, 63 Md. 278 (1885).6 Thompson v. Young, 90 Md. 72, 44 At 1037 (1899).'Md. Code, Art. 45.CASENOTES AND COMMENTSin contract or in tort "as fully as if they were unmar-ried".' The question as to whether under this act a wifecould maintain suit against her husband on a deed of sep-aration without the intervention of a trustee was expresslyleft open in the case of Barclay v. Barclay,' but the courtremarked that "it would seem the question would be pre-sented in a very different light since the Act of 1898. .... "It has been suggested"0 that Sec. 20 of Art. 45 may havegrown out of the query in the Barclay case. This sectionpassed in 1900, provided that "a married woman may con-tract with her husband... and upon all such contracts...may sue and be sued as fully as if she were a feme sole."Under these two statutes it has been definitely decided thatthe wife may maintain a suit in contract either in law orin equity against her husband."The question as to whether the Act allows a marriedwoman to sue her husband in a tort action was, squarelypresented in Furstenburg v. Furstenburg.2 In that casethe wife brought suit against the husband for injuries sus-tained as a result of his negligent operation of the carin which she was riding with him. In holding that the wifecould not maintain the suit the court declared that the pur-pose of Section 5 of Article 45 was merely to give the wifea remedy, by her suit alone, without the necessity of com-plying with the common law requirement of joinder of thehusband. "The intention to create, as between husbandand wife, personal causes of action, which did not existbefore the Act, is not, in our opinion, expressed by itsterms." This opinion was based on the fact that the leg-islature passed a separate Act" allowing the wife to suethe husband in contract; and since no such express Actin regard to tort suits was passed, the intent of the leg-islature must have been that no such action should be per-mitted. This decision places Maryland in line with the ma-Ibid, Sec. 5.'98 Md. 366, 375, 56 AtI. 804 (1904).'0 Md. Code, Art. 45, Sec. 20, annotator's note.Cochrane v. Cochrane, 139 Md. 530, 115 At. 811 (1921).152 Md. 247, 136 At. 534 (1927)."Md. Code, Art. 45, Sec. 20.MARYLAND LAW REVIEWjority view on the right of the wife to sue the husband intort. There is, however, an ever increasing minority whichoffers weighty arguments to sustain the contrary view.14It seems to be the well settled policy of the Court ofAppeals to refrain wherever possible from becoming con-cerned with domestic quarrels. Even in divorce suits where,if ever, the function of the court is to deal with domesticdisputes, it has expressed its reluctance to interfere exceptwhere "either of the parties has been guilty of such con-duct as would make a continuance of the marital relationinconsistent with the health, self-respect, and reasonablecomfort of the other,' 5 and has said: "It is not the func-tion of the Court in such cases as this to arbitrate familyquarrels...."I" The same consideration applied in Schnei-der v. Schneider 7 where the mother brought an action intort against her minor son for injuries sustained in an auto-mobile accident as a result of his negligence. In refusingto allow the action the court said: "We need not dwellupon the importance of maintaining the family relationfree ... from the antagonisms which such suits imply."This policy was adhered to in the Furstenburg case andseems to be the underlying reason for the limited construc-tion of the statute.The rules forbidding tort suits between husbands andwives and between parents and minor children"s wouldseem to be based on two overlapping public policies, one,that domestic quarrels should not be aired in the court-room, and the other, that to permit such suits might tendto disrupt the marital or family harmony, which is so so-cially desirable. This last policy ties in with several rulesof evidence which exclude otherwise admissible evidencein order to foster marital harmony. Thus confidential com-munications between spouses are privileged in order to11 On the right of wife to sue husband for personal injuries, see 29 A.L.R.1482; 33 A. L. R. 1406; 44 A. L. R. 794; 48 A. L. IL 293; 89 A. L. R. 118.For list of states, see (1935) 21 Corn. L. Q. 157, 159.15 Cohen v. Cohen, - Md. -, 187 Atl. 104, 105 (1936), quoting fromSingewald v. Singewald, 165 Md. 136, 146, 166 Atl. 441, 446 (1933)." Ibid.1T 160 Md. 18, 152 Atl. 498 (1930).8For tort actions between parent and child, see 81 A. L. R. 1157.CASENOTES AND COMMENTSencourage spouses to communicate confidential matters toeach other. Spouses are non-compellable to testify againstspo.uses because to allow this would disrupt the maritalharmony between them. The Lord Mansfield rule forbidsspouses to testify to that non-access which would "bastard-ize the issue" because of the marital policy against drag-ging the intimate relations of spouses into the courtroom.Several years prior to the Schneider case, in Cochranev. Cochrane,9 the court had already held that a wife maymaintain a suit against the husband for the protection ofher property either in a court of equity or in a court oflaw, and no mention was made of the public policy doctrine.In the Furstenburg case this decision was disposed of bythe statement: "That the view is not inconsistent with ourconclusion in this case. . . ." The result of the two deci-sions is obvious: The wife may maintain suit against herhusband for a tort committed against her property but notfor one against her person.It is difficult to sustain this distinction in legal principlesince in one case the Act was construed to give the wifea substantive right of action she did not possess at com-mon law, while in the other it was construed not to giveher a substantive right of action she did not possess atcommon law. Also, as a matter of abstract justice, the va-lidity of the distinction i8 questionable. In both cases herrights have been invaded: yet in one she has legal re-dress, in the other she has none. It has been suggestedthat she has a remedy in criminal proceedings, divorce,etc.,20 but actually this is the equivalent to no remedy atall.21As a practical matter, when we consider suits by thewife, there are several arguments that may be advancedfor the validity of the distinction and undoubtedly courtshave had these in mind when making the rules. First, thewife is entitled to the benefit of her husband's assets by2 Supra note 1.1.2 Thompson v. Thompson, 218 U. S. 611, 54 L. Ed. 1180, 31 Sup. Ct. Rep.111 (1910).21 McCurdy, Torts Between Persons In Domestic Relations, (1930) 43 Har.L. R. 1060, 10,52.MARYLAND LAW REVIEWvirtue of her right to his support during his life. Whatreal benefit will she gain by securing a judgment againsthim? He must pay her doctor's bills in any event andsupport her to the extent of his assets for the rest oftheir joint lives, unless divorced. But this argument failsto support the rule when we consider the other side of thepicture, suits by the husband against the wife, which arealso forbidden. There is no such expedient argument tosupport the denial of jurisdiction to entertain such tortsuits. This points to the second argument in favor of notallowing tort suits between members of a family. Theway would be open for fraud upon indemnity insurancecompanies. Even in the absence of fraud it would be al-lowing the husband to profit by his own wrong, since itis evident the damages recovered by the wife would worka practical benefit for him, regardless of the rule as toseparate estates of husband and wife. But whether the dis-tinction is founded upon the public policy doctrine22 an-nounced by the court, or on the practical grounds not an-nounced by the courts, but inherent in their rulings, itseems desirable.Turning to the principal case we find that the Courtagain invokes the doctrine of public policy. Quoting fromState v. Oliver,23 the court says :24 " 'It is better to drawthe curtain, shut out the public gaze and leave the partiesto forget and forgive'. . . . It is apparent from what hasbeen said that, in our opinion, this case is controlled bythe Furstenberg case .... "But in the David case, there was present no domesticquarrel which needed to be "shut out of the public gaze".The tort was not the wilful and direct action of the hus-band nor was it incidental to any personal relations. Itwas due to the negligence of the partnership and its em-ployees. The liability arose vicariously. There wouldseem to be no reason why marital tranquility and blissshould be disturbed by allowing such a suit. Further, none2 For a criticism of the public policy doctrine, see Brown v. Brown, 88Conn. 142, 89 Atl. 889, 891-892 (1914).=70 N. C. 60 (1874).161 Md. 539.CASENOTES AND COMMENTSof the elements which lend themselves to the practical rea-sons noted above are present. The wife has no right tosupport from the partnership. The fraud factor is ab-sent, or at least remote and constant with tort suits gen-erally. There is some question of the benefit to the hus-band but this is no reason for denying the wife legal re-dress under the circumstances. It seems clear that thesubstantial reasons of policy supporting the Furstenburgcase are absent in the principal case.As a matter of strict legal logic, however, the decisionis correct. It is a logical extension of the rule in the Furs-tenburg case, inasmuch as the court adopted the aggregaterather than the entity theory of partnership. This re-fusal to view the partnership as an entity was based on thefact that the "difference between a partnership and a legalentity complete in itself ... is that each partner is severallyliable for the wrongful acts and omissions of the partner-ship, and that he is bound to contribute to his co-partnershis proportionate share of any sum advanced by them tosatisfy an enforceable demand against it". But is thisa necessary reason for refusing to invoke the entity the-ory? Can it not be argued that even though the judgmentobtained may be levied solely upon the property of thehusband or that he may be required to contribute to itspayment, the fact remains that the suit is against the part-nership as such and not against any one individual.Since the Married Women's Acts there is no longerthe argument that the husband would have to appear bothas plaintiff and defendant. The procedural barrier is re-moved. There is left only the question of public policy inallowing tort suits between members of the same family.Unquestionably, much may be said for the legalisticreasoning of the court but the result it reaches is func-tionally undesirable. It has been suggested that the adop-tion of the entity theory requires resort to fiction. Thisis true, but courts on other occasions have not hesitatedto adopt fictions where justice so required, and no conceiv-able harm would result from employing them. "At timesMARYLAND LAW REVIEW. . . changes in economic conditions and in legal conceptshave not coincided, and the courts, in the interest of sub-stantial justice, have adopted dogmatic fictions to suit theparticular case whose circumstances did not seem to findan adequate remedy in the logical application of old estab-lished theories."'25 It is submitted that the court withequally good reasoning could have reached a more de-sirable result here.In summary, it is seen that in Maryland a wife maymaintain an action ex contractu against her husband, andan action ex delicto where the tort is committed against herproperty. She may not sue the husband for torts committedby him against her person, nor may she maintain such anaction against his partnership, though the partnership isthe wrongdoer. The questions whether she may bring suitagainst her husband's employer for a tort committed bythe husband while in the scope of his employment, or maysue the husband for torts committed by his employee, areas yet unanswered in Maryland. In the first case, no ques-tion of public policy would stand in the way of such suit.The majority of the courts in this country have held thatshe cannot maintain such an action, 2 but an ever-increas-ing minority, reaching a more desirable result, have allowedsuch suits holding that the employer may not take advan-tage of the immunity of the employee. In the secondcase supposed, it is fairly clear that such an action wouldnot be allowed under the announced doctrine of public pol-icy adhered to by the Maryland courts.The implications arising from the decision in the prin-cipal case are numerous. Cases may be supposed fromthose where the partnership consists of the husband andan adult son, where it is clear no action will lie, to thosewhere the suit is against a joint stock company or busi-ness trust in which the husband is a share-holder. A logi-cal extension of the rule in the principal case would cer-tainly bar such action, yet it is inconceivable that the court"Carter, The Corporation as a Legal Entity (1919) 232."See 37 A. L. R. 165; 56 A. L. R. 331; 64 A. L. R. 296.'See (1935) 21 Corn. L. Q. 157, 165.CASENOTES AND COMMENTSwould refuse to adopt the entity theory in such a situa-tion.2" Between these two extremes lies the suit againstthe limited partnership, and the suit against the large part-nership, consisting of say fifteen or twenty members. Itis possible such suits may be allowed under the Statute29which permits suits to be brought against an unincorpo-rated association of seven or more members in the firmname, and also provides, that such an action "shall notabate by reason of the . . . legal incapacity of any officeror member of such association. . . ." But the statute wasprobably not intended to embrace ordinary partnerships,and literally read, it does not give much hope. It does, how-ever, plainly recognize such an association as an entity forthe purposes of procedure.When we analyze the reasons for permitting suits be-tween spouses on contracts and for property torts whilethose for personal torts are forbidden it should seem thata further exception should be made for personal tort suitsagainst the partnerships, employers of the spouse, andagainst spouses for torts by employees.It may be justifiable to reject suits between spousesfor personal torts allegedly committed directly by the de-fendant spouse because such suits are so likely to ariseout of the intimate personal relations of the spouses whichare undesirable of being dragged into the courtroom. Itis impractible to set up an objective standard to distinguishthose personal torts which do involve intimate relationsfrom those which do not and therefore could safely be liti-gated in court. So it is that all personal tort suits mustbe rejected.But suits in contract and for property torts are solittle likely of involving intimate relations that litigationconcerning them may safely be permitted without impair-ing the relations of the spouses. Thus has the distinctionbeen drawn in Maryland.Why cannot it be said that the personal torts of a part-For procedural purposes, such an association is treated as an entity, seeMd. Code, Art. 73, Sec. 31.Md. Code, Art. 23, See. 104.MARYLAND LAW REVIEWnership, or by the husband as an employee of someoneelse, or by the employee of the husband, similarly forma clear cut group very unlikely of growing out of intimaterelations between the spouses and which may safely be de-marcated from personal torts generally so that litigationconcerning them should be permitted.It is as simple to draw the line between these tortsand other personal torts as it has already proven to beto draw the distinction between all personal torts on theone hand and the property tort and contract situations onthe other.CONTRACT FOR LIFE-TIME EMPLOYMENT HELDVOID FOR INDEFINITENESS OF SUBJECTMATTER-BALTIMORE AND OHIO RAIL-ROAD COMPANY V. KING1Plaintiff -appellee was injured while employed as brake-man by the defendant-appellant company. An officer of thecompany urged plaintiff not to enter suit, saying: "We aregoing to give you a job for life, if you listen to me; thereis something you can have at Baltimore or at Washington,as switchman, lots of jobs." After recovering from hisinjury, plaintiff was employed by the defendant as switch-man for twenty-two years with only a single interruptionof three months when plaintiff was "on call". In 1931 thejob was abolished, plaintiff was discharged and he broughtsuit for damages for the breach of the oral contract ofthe defendant to employ him for life in consideration ofhis forbearance to sue on the claim. Judgment was givenfor the plaintiff in the lower court and defendant appealed.Held: Judgment reversed. Since neither the type of workto be done, nr the wages to be received were specified, thecontract was too indefinite to be enforced.The problem raised by the principal case is not entirelynew in Maryland. It was first considered in Heckler v.Baltimore & Ohio Railroad Company,2 where the injured'168 Md. 142, 176.Atl. 626 (1935).167 Md. 226, 173 At. 12 (1934).

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Book Reviews

Proper Venue of Suit for Alimony Without Divorce - Ouster of Jurisdiction - Amendment - Woodcock v. Woodcock

Revocation of a Will by Birth of a Child

Double Liability of a Bank Stockholder for a Debt of the Bank Incurred Before His Ownership of the Stock - Ghingher v. Bachtell

Contract for Lifetime Employment Held Void for Indefiniteness of Subject Matter - Baltimore and Ohio Railroad Company v. King

Tort Suit by Wife Against Husband\u27s Partnership - David v. David

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