Gambrill, Michael N.

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Toward The Abolition Of Interspousal Tort Immunity

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University of Baltimore Law ForumVolume 9Number 2 Spring 1979 Article 101979Toward The Abolition Of Interspousal TortImmunityMichael N. GambrillFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationGambrill, Michael N. (1979) "Toward The Abolition Of Interspousal Tort Immunity," University of Baltimore Law Forum: Vol. 9: No. 2,Article 10.Available at: http://scholarworks.law.ubalt.edu/lf/vol9/iss2/10FORUMToward The Abolition OfInterspousal Tort Immunityby Michael N. GambrillThe idea that one cannot sue his or her spouse for atort is deeply entrenched in Anglo-American commonlaw. The concept is known as the doctrine of inter-spousal immunity. Since the development of the doctrineduring the fuedalistic period of England, it has shown agreat deal of resistance to change. Only recently has thedoctrine come under attack and been eroded in theAmerican courts. A number of courts have partiallyabrogated the doctrine by limiting its use as a defense toparticular torts. Others have completely abolished thedoctrine. See, e.g., Klein v. Klein, Cal.2d 692, 26 Cal.Reptr. 102, 376 P.2d 70 (1962); Brooks v. Robinson, 259Ind. 16, 284 N.E.2d 794 (1972); Beaudette v. Frana, 285Minn. 366, 173 N.W.2d 416 (1969); Maestas v. Overton87 N.M. 213, 531 P.2d 947 (1975); and Freehe v. Freehe,81 Wash. 2d 183, 500 P.2d 771 (1972).At common law, husband and wife were presumed forlegal purposes to be identical. Because of this presump-tion, all of the property which a wife owned at marriagebecame solely the property of the husband. Womencould not enter into contracts. A wife could not sue or besued. If the wife was injured in her person or property,she could only bring an action with her husband's nameand with his concurrence. Neither could she be suedwithout her husband as a defendant. In 1 W. Blackstone,Commentaries, this explanation is found:By marriage, the husband and wife are one personin law: that is, the very being or legal existence of thewoman is suspended during the marriage, or at least isincorporated and consolidated into that of the hus-band: under whose wing, protection, cover, sheperforms everything... and her condition upon mar-riage is called her coverture. Id at 442.Until the Married Women's Act of 1898, the Englishcommon law treatment of women was followed in Mary-land. The common law was somewhat limited by theMarried Women's Act of 1898, which is found in Md.Ann. Code Art. 45, sec. 5. That section provides that:Married women shall have the power to engage inany business, and to contract, whether engaged inbusiness or not and to sue upon their contracts, andalso to sue for the recovery, security or protection oftheir property, and for the torts committed againstthem, as fully as if they were unmarried; contractsmay also be made with them, and they may also besued separately upon their contracts, whether madebefore or during marriage, as fully as if they were un-married; nor shall any husband be liable upon any con-tract made by his wife in her own name and upon herown responsibility, nor for any tort committed separ-ately by her out of his presence, without his participa-tion or sanction.Clearly, the statute permits women to enter contracts ontheir own behalf. It is also clear that a woman may sue onher own behalf without obtaining the concurrence of herhusband or using his name as was required by commonlaw. The necessity of naming a husband as a defendant inorder to sue a woman is also abolished by the statute.Logically, if a woman can sue for torts committedagainst her as fully as if she was unmarried, then sheshould be able to sue her husband. Maryland courtswere first faced with this problem in Furstenburg v.Furstenburg, 152 Md. 247, 136A.534 (1927). Confrontedwith a suit by a wife against her husband for injuries sus-tained in an automobile accident, the court was veryconservative in its construction of Art. 45, sec. 5. InFurstenburg, the court relied upon Thompson v.Thompson, , 218 U.S.611 (1910) in which the SupremeCourt construed a District of Columbia statute similar toArt. 45, sec. 5. The majority in Thompson wrote, "Thestatute was not intended to give a right of action asagainst the husband but to allow the wife, in her ownname, to maintain an action of tort which at common lawmust be brought in the joint names of herself and her hus-band." Id. at 617Rationalizing this construction of the District ofColumbia statute, the court pointed out that such a longestablished doctrine as interspousal immunity could onlybe abrogated "by language so clear and plain as to beunmistakeable evidence of the legislative intention."Judge Urner found for the Maryland court, in Fursten-burg, that sec. 5 was not meant to be as broad andunqualified as it appeared. There was no express evi-dence of an intent to abrogate interspousal immunity andtherefore, the doctrine barred the wife's suit in Fursten-burg.After years of suggesting that abrogation of the doc-trine of interspousal immunity was a legislative function,the Maryland Court of Appeals took it upon itself to abo-lish the doctrine partially. In Lusby v. Lusby, 283 Md.334, 390 A.2d 77, 77 (1978), the Court held, "that underthe facts and circumstances of this case, amounting to anoutrageous, intentional tort, a wife may sue her husbandfor damages."As the court points out, the facts are extraordinaryand do dictate the results of the case. Diana R. Lusbyalleged that her husband, Gerald Lee Lusby, and two ofhis companions used their vehicles to force her vehicleoff the road. Once she stopped, her husbandapproached her automobile with a rifle pointed at her,forced his way into the automobile and began to drive.Mr. Lusby proceeded to take her to another locationwith his friends following in one of the other vehicles.Then, it was "alleged that her husband struck her, tore[her] clothes off and did forcefully and violently, despite[her] desperate attempts to protect herself, carnallyknow [her] against her will and without her consent."' Id.at 77. Mr. Lusby proceeded to help his two companionsin their attempt to rape his wife. Before releasing Mrs.Lusby, he threatened to kill her if she went to the police.After that day, he continued to harrass and threaten her.When Mrs. Lusby filed suit against her husband for theinjuries sustained by her from this act, Mr. Lusby raised apreliminary objection asserting a lack of legal capacity onthe part of his wife to sue. His objection was based on thefact that he and the plaintiff were legally married on thedate of the alleged incident. Thus, he believed that thisfact entitled him to raise as an absolute defense, the doc-trine of interspousal immunity. The trial judge grantedthe motion and a judgment for costs was entered againstthe wife in favor of the husband. An appeal was filed withthe Court of Special Appeals and prior to considerationby the Court of Special Appeals, the Court of Appealsgranted certiorari.The Court of Appeals, in Lusby draws considerablesupport for partially abrogating the interspousal im-munity doctrine from the dissent in Thompson. JusticesHarlan, Holmes and Hughes, who are characterized bythe Maryland Court as "three of the great minds of theSupreme Court of the United States in 1910," join in dis-sent. Justice Harlan writing for the dissent observes that,[The statute] proceeds to authorize married women'also to sue separately for the recovery, security orprotection of their property; still more, they may sueseparately, 'for torts committed against them, as fullyand freely as if they were unmarried.' No discrimina-tion is made, in either case, between the personscharged with committing the tort. No exception ismade in reference to the husband, if he happens to bethe party charged with transgressing the rights con-ferred upon the wife by statute. In other words, Con-gress, by these statutory provisions, destroys theunity of the marriage association as it previouslyexisted.But my brethern.. .are moved to add, by construc-tion, to the provision that married women may 'sueseparately.. for torts committed against them as fullyand freely as if they were unmarried' these words:'Provided, however, that the wife shall not be entitled,in any case, to sue her husband separately for a tortcommitted against her person.' Thompson, supra at622-3.Judge Smith points out that much of what Justice Harlansaid would be applicable to an analysis of the Marylandact.The Lusby court points to a lack of policy reasons forpreventing one spouse from recovering from another forthe outrageous conduct alleged. Perhaps, the mostwidely propounded reason for continuing to allow the de-fense of interspousal immunity is the preservation of fai-ily harmony. In Lusby where an intentional tort wasinvolved, the Court declared, "[t]here certainly can beno domestic tranquility." Refusing to accept this reasonas other courts have for upholding the doctrine, theCourt went on to cite an earlier decision (which upheldthe doctrine on different grounds). "[I]n Gregg v. Gregg,199 Md. 662, 87 A.2d 581 (1952), Chief Judge Marburysaid for the Court, 'After discord, suspicion and distrusthave entered the home, it is idle to say that one of the par-ties shall not be allowed to sue the other because of fearof bringing in what is already there.' "Lusby, supra at 88.After discussing the reasons for completely abolishinginterspousal immunity, the Lusby court stopped short ofdoing so. In a very conservative step, the Court ofAppeals limited its holding to intentional torts of an out-rageous nature,For purposes of our decision here today, however,we need not be involved with statutory constructionnor need we be involved with our prior cases otherthan for dicta appearing in them to the effect that onespouse may not sue another for tort. We find nothingin our prior cases or elsewhere to indicate that underthe common law of Maryland a wife was not permittedto recover from her husband in tort when she allegedand proved the type of outrageous, intentional con-duct here alleged. (emphasis added) Lusby, supra at89.Clearly, the cases which have upheld the doctrine ofinterspousal immunity such as Furstenburg, supra, wereleft standing although their rationale was shaken byLusby.At the same time Lusby was decided, the SupremeCourt of Appeals of West Virginia decided Coffindafferv. Coffindaffer, _W. Va. -, 244 S.E. 2d 338 (1978).That case involved both an intentional tort and a negli-gent tort. In completely abolishing interspousal immu-nity, the Court, relying upon Thompson, supra for manyof the same reasons the Maryland Court of Appealsfound in the dissenting opinion by Justice Harlan, over-ruled an earlier West Virginia case to the contrary. TheCourt, in Coffindaffer, also examined the family har-mony rationale, saying, "[L]t is difficult to see how any lawbarring access to the courts for personal injuries will pro-mote harmony. If this were a valid sociological considera-tion, the Legislature could orchestrate even greaterharmony by abolishing the statute giving the right todivorce." Id. at 342.Two other reasons commonly put forth for continuingto grant interspousal immunity, were also discussed bythe Court in Coffindaffer. The first, fraud and collusionbetween the spouses is directly linked to the second, thepossibility of increased liability of insurance companies.FORUMIn answer to the fraud and collusion argument, theCourt expressed its belief that the integrity of the adver-sary system could not be so easily beguiled. In additionthe Court said,[ln suits for personal injuries the issue is not only lia-bility, as such cases assume real proportions only ifthere are valid personal injuries of some magnitude.There may be those desperate couples who wouldconclude that the prospect of a substantial monetaryrecovery is worth the pain of self inflicted injuries. Onecan hardly imagine that the legal system will breakdown with cases brought by spouses who have flungthemselves down cellar steps or permitted the otherspouse to strike them with the family car in order toachieve the type of substantial injury that makes jurylitigation worthwhile. Id. at 342-3.As for the insurance companies, the Court expressedthe feeling that adequate use of discovery methodswould alert them to the falsity of the claim.In Freehe, supra, the Court discussed another answerfrequently found in the cases that refuse to allow suits intort between spouses:A third reason advanced in support of maintaining thecommon-law rule of disability is the suggestion thatthe injured spouse has an adequate remedy throughthe criminal and divorce laws. It has been observedthat neither of these alternatives actually compen-sates for the damage done, or provides any remedyfor unintentional (negligent) torts. Id. at 774.We are cognizant of the long standing nature of thecommon law rule of interspousal tort immunity. Butwe find more impelling the fundamental precept that,absent express statutory provision or compelling pub-lic policy, the law should not immunize tort-feasors ordeny remedy to their victims. Id. at 777.In the future, the Court of Appeals in Maryland mayeliminate the doctrine of interspousal immunity withoutreservation. The dicta in Lusby, supra, should aid greatlyin overcoming the doctrine when raised as a defense in anegligence or less severe intentional tort injury case.That dicta combined with the precedent of cases fromother jurisdictions, which have abolished the doctrine,may aid the many battered wives of today's society. Aspouse should not have to wait for the occurence of anoutrageous intentional tort or have to rely on a divorce tobe compensated for losses or injuries.POETIC LICENSEby Jeffrey Kluger"The Supreme Court will never entertain the notion oftampering with the sanctity of the application and inter-pretation of the nation's abundant crop of social idioms,fables and popular cliches."-Warren Earl BurgerSo spoke the Chief Justice at last year's American BarAssociation convention in Kansas City. Yet less than tenmonths later, the Court "tampered" indeed, and in sodoing, elected to overturn one of American culture'shoarier, more entrenched cliches.Pippin v. Rufo, 98 S.Ct. 653 (1979), the Court'sresponse to long gathering judicial storm clouds,emerged as the linch-pin of a rapidly accelerating move-ment designed, as one activist noted, "to overthrow thevise-like tyranny of ancient platitudes." The case posedthe question of whether, when the going gets tough, thetough must indeed get going."Not necessarily," responded the court.The Pippin plaintiff alleged due process violationswhen his tenure as a member of a semi-professional foot-ball team was abruptly rescinded for failure to complywith the basic tenets of the motto. The Court, finding infavor of the plaintiff, held that "athletic exhortations arenot of such a sacred, inviolable character that they maybe exempted out-of-hand from the guarantees of the14th amendment. Constitutional imperatives must binduniformly both the profound and the banal." Having thusestablished the justiciability of the case, the Courtordered the reinstatement of the aggrieved athlete basedupon the team's "wholesale failure to provide its playerswith notice as to the precise moment at which the goinggot tough and the requisite subsequent behavior suffi-cient to constitute the ideal of getting going."The ruling stunned most judicial insiders. With un-accustomed suddenness, the Court discarded one of itsmost venerable policies, spurning in a single holding twohundred years of laissez-faire deference. "The flood-gates are open," remarked one senior Washington advo-cate, "now all that remains is to brave the people's criesof 'foul.' "Despite such dire forecasts, public response to thePippin initiative has been generally supportive. The Vet-erans of Foreign Wars, electing uncharacteristically tocomply voluntarily with the spirit of the decision,announced last week that it has designated January 1,1981 as the formal expiration date of the public's respon-sibility for collective recollection of the historic Alamoconflict and promised a study to examine the feasibility ofsimilar action regarding The Maine, Lusitania and PearlPhoto by JJ.R.

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Toward The Abolition Of Interspousal Tort Immunity

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