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Bozman v. Bozman9/4/2002
Appeals and this Court nevertheless have recognized that the historical underpinnings of the doctrine are contrary to present-day circumstances. Boblitz v. Boblitz, 296 Md. 242, 245 (1983); Linton v. Linton, 46 Md. App. 660, 661 (1980). Indeed, over the years, the Court of Appeals has had misgivings about some of its prior decisions holding that the doctrine remains viable in Maryland. More than half a century ago, Chief Judge Marbury, writing for the Court, rejected as "artificial" the "broader sociological and political ground that [suits between spouses] would introduce into the home, the basic unit of organized society, discord, suspicion and distrust, and would be inconsistent with the common welfare." Gregg v. Gregg, 199 Md. 662, 666 (1952) (citations omitted). Chief Judge Marbury said the following about that asserted rationale for the doctrine:
It applies to a post-bellum situation a theory which is clearly only applicable to conditions prior to the difficulty which caused the bringing of the legal action. After discord, suspicion and distrust have entered the home, it is idle to say that one of the parties shall not be allowed to sue the other because of fear of bringing in what is already there. Id. 667.
Its criticism of the doctrine notwithstanding, the Court of Appeals was unwilling in Gregg, and for many years thereafter, to abrogate the doctrine in the face of legislative silence on the subject. See, e.g., Stokes v. Assoc. of Indep. Taxi Operators, Inc., 248 Md. 690, 691 (1968) (recognizing a split of authority on the continued viability of the doctrine, but stating that any change in the rule must come from the General Assembly); Hudson v. Hudson, 226 Md. 521, 526-27 (1961) (stating that "we feel impelled to follow our previous decisions . . . and to hold that the wife's cause of action [against husband to recover for personal injuries] was extinguished upon marriage to the defendant . . . ."); Ennis v. Donovan, 222 Md. 536, 542-43 (1960) (holding that the common law precluded a married woman from suing her husband for injuries suffered by her as the result of his negligence, and that "if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts"); Gregg, 199 Md. at 670 (concluding that, absent an "express mandate from the Legislature to that effect," the Court was powerless to permit a wife's suit against her husband, and if "this omission should be repaired, it is for the Legislature, and not for us, to act").
It was not until 1978, in Lusby, that the Court of Appeals narrowed the scope of the doctrine's applicability in the area of intentional torts. In that case, Ms. Lusby brought a tort action for damages against her husband, alleging that he and two unidentified men had forced her vehicle off a public highway at gunpoint, and that he then "forcefully and violently" raped her and thereafter assisted his accomplices in attempting to rape her. 283 Md. at 335-36.
Judge Smith, writing for the Court, traced the doctrine's history and application to cases in Maryland, and declared: "We can conceive of no sound public policy in the latter half of the 20th-century which would prevent one spouse from recovering from another for the outrageous conduct here alleged." Id. at 357. Noting that " he General Assembly has not heeded the suggestions by this Court that a new statute be enacted," and that none of the Court's prior cases had involved an intentional tort, id., the Court held: "We find nothing in our prior cases or elsewhere to indicate that under the common law of Maryland a wife was not permitted to recover from her husband in tort when sh
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