Boblitz v. Boblitz

*282

Couch, J.,

dissenting:

The Court today has abrogated the common law rule of interspousal immunity as to cases sounding in negligence. I must respectfully dissent, not because of any personal opinion against allowing such actions brought by one spouse against another, but because I believe this change involves public policy and that policy change is best made by the legislature.

The thrust of the majority’s reasoning appears to be that the immunity rule no longer has a valid basis and the trend throughout our sister jurisdictions is to abrogate it. While I recognize that "[t]he common law is ... subject to modification by judicial decision in light of changing conditions or increased knowledge where this Court finds that it is a vestige of the past, no longer suitable to the circumstances of our people[,]” Felder v. Butler, 292 Md. 174, 182 , 438 A.2d 494, 499 (1981), in my view this involves a matter of public policy. As such, I believe it then becomes a matter normally for the legislature. In Felder , Chief Judge Murphy wrote for the Court:

"Although empowered to change common law rules in light of changed conditions, the Court has always recognized that declaration of public policy is normally the function of the legislative branch of government. Adler [v. American Standard Corp.], 291 Md. [31,] at 45 [, 432 A.2d 464 (1981)]. The Court has therefore declined to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State, as declared by the General Assembly of Maryland.” Id. at 183, 438 A.2d at 499 .

If, indeed, we were writing on a clean slate, the majority’s view could very well be supported. The fact of the matter is, however, that this issue has been before the Court, in one form or another, since the passage of the Married Women’s Act of 1898. In Lusby v. Lusby, 283 Md. 334 , 390 A.2d 77 (1978), Judge Smith thoroughly reviewed the many *283 instances in which this Court was concerned with the interpretation of what is now Maryland Code (1957, 1982 Repl. Vol.), Art. 45, § 5, in the context of interspousal immunity. 1 During his review, Judge Smith wrote that not all of our sister jurisdictions "have jumped on the bandwagon of those who would abolish interspousal immunity[,]” pointing out that "[a] number of decisions have upheld th[e] doctrine, even where the marital relationship had terminated before the filing of the tort action.” Id. at 349, 390 A.2d at 84 . Furthermore, Lusby pointed out that in some of these prior cases the Court, in effect, invited the legislature to enact legislation abrogating the immunity rule and stated if any change was to be made it would have to come from that body. Finally, he also stated that "[t]he General Assembly has not heeded the suggestions by this Court that a new statute be enacted.” 2 Id. at 357 , 390 A.2d at 88 . Thus, it is clear to me that for over a half century this Court has periodically concerned itself with the concept of interspousal immunity and has consistently refused, by judicial fiat, to abrogate the rule, leaving it to the legislature to deal with it according to its perception of public policy.

As the Supreme Court of Delaware observed in Alfree v. Alfree, 410 A.2d 161, 163 (1979), appeal dismissed, 446 U.S. 931 , 100 S.Ct. 2145 , 64 L.Ed.2d 783 (1980):

"[T]he problem [of abrogating the doctrine of interspousal tort immunity] is 'more appropriate for legislative solution than for judicial determination. *284 The General Assembly has access to relevant information bearing upon these matters more significant than any afforded this Court, bound as it is by the limitations of the record of this judicial proceeding’. Justice v. Gatchell, Del.Supr., 325 A.2d 97, 102 (1974). Tf a change is to b.e effected in the well-settled public policy of this State, such change must be effected by the Legislature and not by this court.’ Saunders v. Hill, [Del. Supr.] 202 A.2d [807,] at 810 [(1964)].”

Delaware is one of the states still adhering to the doctrine and has consistently declined to overrule it by judicial decision. See Alfree, supra, at 162 and cases cited therein.

As recent as March of this year in Harrison v. Montgomery County Board of Education, 295 Md. 442, 458-60 , 456 A.2d 894, 902-03 (1983), 3 Chief Judge Murphy wrote for the Court:

"When called upon, as here, to overrule our own decisions, consideration must be given to the doctrine of stare decisis — the policy which entails the reaffirmation of a decisional doctrine of an appellate court, even though if considered for the first time, the Court might reach a different conclusion. Deems v. Western Maryland Ry., 247 Md. 95 , 231 A.2d 514 (1966). Under the policy of stare decisis, ordinarily, 'for reasons of certainty and stability, changes in decisional doctrine are left to the Legislature.” Id. at 102 . As the Court observed many years earlier in DeMuth v. Old Town Bank, 85 Md. 315, 320 , 37 A. 266 (1897):

'[I]t is, in the end, far better that the established rules of law should be strictly applied, even though in particular instances serious loss *285 may be thereby inflicted on some individuals, than by subtle distinctions invented and resorted to solely to escape such consequences, long settled and firmly fixed doctrines should be shaken, questioned, confused or doubted.. .. It is often difficult to resist the influence which a palpable hardship is calculated to exert; but a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured. It is for the Legislature by appropriate enactments and not for the Courts by metaphysical refinements to provide a remedy against the happening of hardships which may result from the consistent application of established legal principles.’

Accord, Hauch v. Connor, 295 Md. 120 , 453 A.2d 1207 (1983); Austin v. City of Baltimore, 286 Md. 51 , 405 A.2d 255 (1979); Osterman v. Peters, 260 Md. 313 , 272 A.2d 21 (1971); White v. King, 244 Md. 348 , 223 A.2d 763 (1966).

Notwithstanding the great importance of the doctrine of stare decisis, we have never construed it to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people. Williams v. State, 292 Md. 201 , 438 A.2d 1301 (1981); Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981); Condore v. Prince George’s Co., 289 Md. 516 , 425 A.2d 1011 (1981); Kline v. Ansell, 287 Md. 585 , 414 A.2d 929 (1980). As we said in Felder v. Butler, 292 Md. 174, 182 , 438 A.2d 494 (1981), the common law is not *286 static; its life and heart is its dynamism — its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems. However, in considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State’s public policy — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly; that body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered to revise the common law of Maryland by legislative enactment. See Felder v. Butler, supra, 292 Md. at 183; Adler v. American Standard Corp., supra, 291 Md. at 45 . The Court, therefore, has been particularly reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State. See, e.g., Condore v. Prince George’s Co., supra, 289 Md. at 532 .”

Furthermore, I note that in Harrison, supra, we included interspousal immunity in tort actions as an example in a rather lengthy list of areas of the law where "[consistent with these principles, [as quoted above,] we have on numerous occasions declined to change well-settled legal precepts established by our decisions, in each instance expressly indicating that change was a matter for the General Assembly.” 295 Md. at 460, 456 A.2d at 903 .

In my view, what we said in March, 1983, is equally applicable in June, 1983. While I recognize that many of our sister jurisdictions have abrogated, fully or in part, the immunity rule, some have refused to do so. Many of those which have done so have placed a different interpretation on their Married Women’s Act than has this Court in Furstenburg v. Furstenburg, 152 Md. 247 , 136 A. 534 (1927). In that case this Court clearly held that by the Married Women’s Act the legislature did not express an intention to create, as between husband and wife, personal causes of *287 action which did not exist before the Act. Thus I am not persuaded that we should, in 1983, overrule what has stood as the law for fifty-five years.

Legislative history demonstrates that since 1959 the legislature has considered the matter seven times without enacting any abrogating legislation. 4 This history suggests to me that this is not simply a circumstance of non-action by the legislature but, indeed, one of positive action, i.e., rejection, for whatever reason, of efforts to abrogate the immunity rule. As this Court so aptly observed in Harrison, supra, 5 "[a]lthough not conclusive, the legislature’s action in rejecting the proposed change is indicative of an intention to retain the .. . doctrine.” 295 Md. at 462, 456 A.2d at 904 . Moreover, it is patent from reviewing the committee files on the recent bills that the General Assembly is well aware of the status of this doctrine in other jurisdictions. Nevertheless, none of these bills has been enacted. In the face of this history, it appears, to me, wrong for the Court to impose its view of public policy contrary to the apparent view held by the very body closest to the public.

In my view, in reaching its decision in this matter, the majority is placing too much emphasis on the decisions of *288 other jurisdictions. As the Supreme Court of Kansas observed in Guffy v. Guffy, 230 Kan. 89 , 631 P.2d 646, 648-49 (1981):

"After studying the cases from other states, we conclude the decisions are based upon the decisional law, the statutory law and the public policy of each respective state. As such, the cases are. not persuasive for the outcome of each case has been dictated by entirely different constitutional and statutory law. For instance, at least three states have'interspousal immunity dictated by statute.’ 92 A.L.R.3d 901 , § 5. Some states are community property states in which damages for personal injuries to a spouse become community property. In those states, in the absence of specific statute providing otherwise, the damages recovered would be controlled and managed by the husband. Windauer v. O’Connor, 107 Ariz. 267 , 485 P.2d 1157 (1971). Some states do not have married women’s acts and immunity in those states may be based on the common law doctrine of the unity of husband áhd wife. Therefore, we do not believe the weight bf' current judicial authority from other states is either well defined or of significance in deciding the. present question for Kansas.”

- I believe that abrogation of the doctrine of interspousal tort immunity "involves fundamental and basic public policy considerations properly to be addressed by the legislature.” Harrison, supra, 295 Md. at 463, 456 A.2d at 905 . I, therefore, respectfully dissent. I am authorized to state that Judge Rodowsky concurs in the views here expressed.

. Stokes v. Taxi Operators Ass’n, 248 Md. 690 , 237 A.2d 762 (1968); Hudson v. Hudson, 226 Md. 521 , 174 A.2d 339 (1961); Ennis v. Donovan, 222 Md. 536 , 161 A.2d 698 (1960); Fernandez v. Fernandez, 214 Md. 519 , 135 A.2d 886 (1957); Gregg v. Gregg, 199 Md. 662 , 87 A.2d 581 (1952); Riegger v. Brewing Company, 178 Md. 518 , 16 A.2d 99 (1940); David v. David, 161 Md. 532 , 157 A. 755 (1932); Furstenburg v. Furstenburg, 152 Md. 247 , 136 A. 534 (1927).

. In Lusby , this Court held that a wife may sue her husband for damages where his conduct amounts to "an outrageous, intentional tort....” 283 Md. at 335 , 390 A.2d at 77 (emphasis added). However, we pointed out that there was "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 she alleged and proved the type of outrageous, intentional conduct here alleged.” Id. at 358 , 390 A.2d at 89 (emphasis added).

. In Harrison , six members of this Court declined to abrogate the common law rule of contributory negligence concluding that "[i]n the final analysis, whether to abandon the doctrine of contributory negligence in favor of comparative negligence involves fundamental and basic public policy considerations properly to be addressed by the legislature.” 295 Md. at 463, 456 A.2d at 905 .

. The substantive matter of such bills has been varied. H.B. 268 (1959) provided that the subsequent marriage of two parties involved in litigation not act as a bar to a continuance of such litigation or execution of the judgment. S.B. 137 (1967) would have created the right for a wife to bring a tort action against her husband where the tort occurred prior to the marriage. H.B. 1309 (1976) originally gave a married person the right to bring action against his or her spouse in tort for an assault; the bill was amended to include assault and battery. H.B. 124 (1977) provided for an action by either spouse in tort for assault and battery; it was amended so that such actions could be filed only after the filing of a divorce proceeding. H.B. 87 (1978) was essentially the same as H.B. 124 (1977) with a similar amendment; however, the amendment also included a provision to allow the courts to issue an injunction to protect either party from physical harm or harassment. H.B. 653 (1979) would have created a cause of action for intentional torts by either spouse. S.B. 188 (1981) originally addressed intentional torts, but was amended to include all torts. Of the seven bills, only one ever emerged from committee. In 1981, S.B. 188 passed the Senate with a vote of 10 to 5 and was submitted to the House where it died in committee.

. We noted in Harrison that from 1966 through 1982, the legislature had considered and rejected 21 bills which would have replaced the doctrine of contributory negligence with a comparative fault system. 295 Md. at 462, 456 A.2d at 904 .