Panlilio, Linda Lee

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 10Number 2 Spring 1980 Article 174-1-1980Wife v. Husband, In Maryland, After Vance v. VanceLinda Lee PanlilioFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfThis 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 CitationPanlilio, Linda Lee (1980) "Wife v. Husband, In Maryland, After Vance v. Vance," University of Baltimore Law Forum: Vol. 10: No. 2,Article 17.Available at: http://scholarworks.law.ubalt.edu/lf/vol10/iss2/17Wife v. Husband, InMaryland, After Vance v.Vanceby Linda Lee PanlilioFor centuries at common law a wife could not sue herhusband for any reason. This tradition is based ontheories of inter-spousal tort immunity, including mergerof the legal existence of wife into husband by marriageand public policy regarding preservation of the family.Furstenberg v. Furstenberg, 152 Md. 247, 136 A. 534(1927). This was true even where the cause of action wasbased on events occurring prior to the marriage in Mary-land and most other jurisdictions, Barton v. Barton,32 Md. 214, 224 (1870); Farage, Recovery for TortsBetween Spouses, 10 IND. L.J. 290, 292-94 (1934).Inter-spousal tort immunity was also upheld because ofthe strong possibility of collusion in the filing of spuriousclaims, especially in regard to insurance recoveries, influ-enced by the close relationship between husband andwife. Adequate alternative remedies were felt to be avail-able through criminal and divorce courts. 8 U. BALT. L.REV. 584, with numerous citations, at 587(1979). Even-tually, enactment of the Married Womens' Property Acts,such as Maryland Annotated Code, Art. 45 §5 (1971 andSupp. 1978), established a separate legal identity formarried women. However the Acts were generally foundto establish rights to sue third parties, not husbands. Thisinterpretation was upheld by the Supreme Court inThompson v. Thompson, 218 U.S. 611 (1910), and wasalmost universally recognized until recently. 8 U. BALT. L.REV., supra at 589.The general rule was abrogated in Maryland in 1978,by Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978),when it was held that there was nothing under the com-mon law of Maryland to indicate that a wife was notpermitted to recover from her husband in tort when shealleged and proved his outrageous conduct towards her.Outrageous conduct was the Lusby criteria for a narrowexception to the immunity.Prior to Lusby it had been found that the right of a wifeto sue must be conferred by statute, Gregg v. Gregg, 199Md. 662, 87 A.2d 581 (1951); Ennis v. Donovan, 222Md. 536, 161 A.2d 698 (1959); that the MarriedWomans Property Act put the wife on the same footing asthe husband with respect to her personal and propertyrights, Kromm v. Kromm 31 Md. App. 635, 358 A.2d247 (1976); that the statute (M.W.P.A.) must be strictlyconstrued as granting a wife the right of a femme sole tosue and be sued, Furstenberg v. Furstenberg, 152 Md.247, 136 A. 534 (1927); Fernandez v. Fernandez, 214Md. 519, 135 A.2d 886 (1957); to sue in her own namefor torts committed against her before or after the Act waseffective, Wolf v. Frank, 92 Md. 138, 48 A. 132 (1900); topurchase and become liable in property transactions,Whitely v. Whitely, 117 Md. 538, 84 A.68 (1912); to suein her own name for protection of her property, Master-man v. Masterman, 129 Md. 167, 97 A. 537 (1916);Cochrane v. Cochrane, 137 Md. 530, 115 A. 811(1921); Furstenberg, supra; to sue for torts committedagainst her and on her contracts, Hudson v. Hudson. 226Md. 521, 174 A.2d 339 (1961); that no additional right tosue husband was conferred, only the right to sue alone,independently from the husband, Hudson, supra,Fernandez, surpa, Furstenberg, supra; that wife couldcontract with husband and sue against him, limited toactions on contracts between them, Gregg; supra, 13MD. L. REV. 253 (1953); and that either husband or wifecould sue the other in equity regarding protection ofproperty, Blumenthal v. Monumental Security Storage,Inc., 271 Md. 298, 316 A.2d 243 (1974); Jones v.Jones, 259 Md. 336, 270 A.2d 126 (1970); Fernandezsupra; Cochrane v. Cochrane, 139 Md. 530, 115 A.811 (1921); Smith v. Smith, 211 Md. 366, 127 A.2d374 (1956).Thus it evolved that a married woman may sue herhusband, Masterman, supra, Cochrane, supra; Fursten-berg, supra; but not for a personal tort, Furstenberg, su-pra; Fernandez, supra; Ennis, supra; Hudson, supra,David v. David, 161 Md. 532, 157 A. 755 (1932).Where a wrongful act was committed by the managainst the woman prior to their marriage, and when thewomen could have sued the man for that act, marriageextinguished the cause of action, Hudson, supra. A wifecould not sue husband for injuries sustained in auto ac-cident in Maryland; Mountjoy v. Mountjoy, -Md.-,206 A.2d 733 (D.C. App. 1965), although under NorthCarolina law a Maryland wife could sue husband forsuch tort, La Chance v. Service Trucking Company,215 F. Supp. 162 (D.C. Md. 1963); nor could a wife re-cover for negligent torts even if the parties were sepa-rated with an executed separation agreement, Asch v.Asch, 11 Md. App. 395, 274 A.2d 646 (1971).There is no statute similar to the Married Woman'sProperty Act, nor any case law whereby a husband maysue his wife except in contract as noted in Gregg, supra. Asuit by husband seeking to have wife enjoined fromassaulting husband, taking his personal property, damag-ing his personal or real property, and restrained fromtrespassing was dismissed for failure to state a cause ofaction for which relief could be granted, in Sarkissian v.Sarkissian, 35 Md. App. 445, 360 A.2d 453 (1976).Finally, in Lusby, supra, it was found that a wife couldindeed sue the husband in tort for outrageous acts againsther. The Lusbys were living separate and apart, pursuantto filing for divorce. Mr. Lusby raped his wife and assistedFORUMtwo friends in their attempt to do likewise. Under Mary-land law a husband is immune from prosecution for rapeof his wife, Maryland Annotated Code, Art. 27, §464D(1976). However, when Mrs. Lusby brought chargesagainst all three for rape, assault, battery, false imprison-ment, and intentional infliction of emotional injuries theMaryland Court of Appeals granted certiorari to hear thecase. The Court ruled that in Maryland interspousal tortimmunity was abrogated in cases involving outrageous,intentional torts, thereby modifying the common lawdoctrine, 8 U. BALT. L. REV., supra, at 584, 585.However, the modification was narrowly drawn to ap-ply only to outrageous, intentional torts. The court did notrelate its decision to any statutory construction.The Lusby decision of 1978 has been followed by aDecember, 1979, decision allowing recovery from a hus-band by the wife for a negligent tort. Vance v. Vance, -Md.-, 408 A.2d 728 (1979); affirming in part, overrul-ing in part 41 Md. App. 130, 396 A.2d 296 (1979). InVance the wife was awarded a verdict for negligent mis-representation which resulted in actionable emotionaldistress. The court found a right to recovery for emo-tional distress resulting in physical injury under Bowmanv. Williams, 169 Md. 397, 165 A. 182 (1933), eventhough here the distress was caused by the husband.In Vance the emotional distress resulted from the hus-band's revealing to the wife that their marriage of 20years was a nullity since the divorce decree from his priormarriage had not become final until after he had beenmarried to the plaintiff-wife for more than a month.A husband being sued may argue that Vance does notfurther abrogate inter-spousal immunity sufficiently toallow the case of action because the Vance marriagewas void. However the Maryland Court of Special Ap-peals refers to the bigamous Vance union as a "mar-riage" throughout its analysis and discussion of Vancedivorce proceedings. The Maryland Court of Appealssidesteps the issue by referring to the parties as Dr.Vance and Muriel respectively throughout. Neither caseactually addresses the issue in light of the inter-spousalimmunities, however a plain reading of Lusby followedby Vance would extend sufficient cause of action to asimilarly wronged wife. For general discussion regardingthis issue see 79 HARV. L. REV. 1650 (1966) and see 8U. BALT. L. REV. 584, 596 (1979) for specific discussionregarding such logical extension to abrogation of intra-spousal tort suits in negligence at 594. For articles onvoid and voidable marriages in Maryland see 22 MD L.REV. 211 (1958) and 13 MD. L. REV. 128 (1933)Try, Try Again (It's yourconstitutional right)by Lu ClarkJust in time for the nail-biting, coffee-soaked expedi-tion into bar exam study period comes this cheery bit ofnews from the federal district court in Colorado: it vio-lates due process and perhaps equal protection for a limitto be placed on the number of times an applicant cantake the bar exam.While agreeing that the exam is a valid measure ofprofessional competence (something that has also beenchallenged lately), the plaintiff asserts that the number oftimes the test is taken before a passing score is achieved isirrelevant. Additional legal study, exposure to law-relatedwork, or even individual changes in maturity and per-sonal development may affect one's ability to compre-hend and articulate legal principles.Application of a rule that effectively places a final limi-tation on the number of examinations an individual maytake appears to be based upon an assumption that agiven individual will never become competent, saysYounger of Younger v. Colorado State Board of BarExaminers, reported in 48 USLW 2518 (1980). It couldalso be considered to create an irrebuttable presumptionof incompetence of the type that has been found to beconstitutionally infirm. The court rejected evidence thatno fifth-time examinees have ever passed and held thatby eliminating any opportunity for reexamination, therule has no rational connection with the compelling inter-est in requiring a demonstration of professional compe-tence and is therefore unconstitutional.

Wife v. Husband, In Maryland, After Vance v. Vance

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Wife v. Husband, In Maryland, After Vance v. Vance

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