Appeal from the Circuit Court for Wicomico County; Henry, C. J., and Taylor, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Prescott, J., delivered the opinion of the Court.
Two appeals have been brought here in one record. The appellant Eleanor J. Easel instituted two suits in the Circuit Court for Wicomico County: one (the infant's suit) as the mother and next-friend of her infant daughter, Eleanor Easel Hudson, for personal injuries to said infant; the other (the mother's suit) in her individual capacity, for reimbursement for necessary expenditures for doctors, hospital, and other medical expenses incurred by the mother.
The infant's suit alleged negligence on the part of the appellee in the operation of a motor vehicle, in which the infant was a guest passenger, with resultant injuries to the infant. It further alleged that she was unmarried at the time of her injuries, but, subsequently, had married the appellee; facts that are conceded in both suits. The declaration in her suit contained two counts, but the only one involved in this appeal is the first. The mother's suit alleged the negligence of the appellee, resulting injuries to said infant, and that she, the mother, had become obligated to expend large sums of money for doctors, and for hospital and medical expenses.
The trial court sustained demurrers, without leave to amend, to the narrs in both cases, upon the theory that the subsequent marriage of the said infant and the appellee barred the mother and the infant daughter from maintaining suits against the appellee-husband.
We shall first consider whether in Maryland a wife may maintain an action against her husband for negligent personal injuries, suffered by the wife as the result of a premarital tort committed by the husband. The wife's argument to the effect that the answer should be in the affirmative is,
briefly stated, thus: the tort having been committed prior to coverture, a cause of action did arise and accrue in her; and, even though she concedes that her subsequent marriage to the tortfeasor would, under the common law of Maryland, prevent or bar her from enforcing the cause of action, she is, nevertheless, specifically authorized and empowered to maintain and enforce her said cause of action by the provisions of Code (1957), Article 45, Section 5.*fn1
We do not consider an extended or elaborate discussion of the same necessary, for the answer, we think, is to be found in our previous decisions, (wherein the objectives and effect of Section 5 have been treated quite fully -- some of the decisions being of very recent vintage) although not under the precise state of facts as those presented here. In accordance with her presentation of her case, as we have set it forth above, our only inquiry is whether said Section 5 conferred upon her the right to sue her husband in tort.
The previous decisions of this Court have held, flatly, that the purpose of Section 5 in stating that the wife could sue for a tort committed against her and on her contracts was to give her no additional rights, except to sue alone where formerly she must have sued jointly or in the name of another, and that it did not confer upon her the right to sue her husband for a tort committed against her person by her husband or on a contract with her husband. Section 5, enacted in 1898, first came before the Court in Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534, where a wife sued her husband for personal injuries resulting from his negligent operation (during
coverture) of an automobile. The Court pointed out that it was certain the common law did not permit such an action, and then followed the leading case of Thompson v. Thompson, 218 U.S. 611, by holding that Section 5 did not confer upon the wife the right to make her husband a defendant in such litigation. Judge Urner, who wrote the opinion, went on to say the conclusion of the Court was fortified by the provisions of Section 20 of Article 45, passed two years after Section 5, wherein the wife was given, inter alia, the right to contract with her husband and to sue upon such contracts as fully as if she were a feme sole, pointing out that ...