Deems v. Western Maryland Railway Co.

Oppenheimer, J., delivered the opinion of the Court. For the first time in this State, the denial of a wife’s right to sue for loss of her husband’s consortium due to injuries received by him as the result of the defendant’s negligence, is expressly challenged as a violation of the wife’s rights under the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution. In recent years, the wife’s right of action for loss of consortium has been considered and reconsidered by a number of respected courts throughout the country and the subject has been discussed by many eminent authorities in textbooks and in law review articles. Only a few decisions, however, have passed upon the constitutional question now raised.

The plaintiff-appellant, a married woman, filed suit in her own name, in the Superior Court of Baltimore City, without joinder of her husband as a plaintiff, against the Western Maryland and Pennsylvania Railroads, alleging that each of the defendants wronged her in negligently causing her husband to suffer injuries which “have and will hereafter interfere with, diminish and destroy the normal society, companionship and consortium to -which Plaintiff is entitled of right from her husband.” The declaration alleges that plaintiff’s husband was in ¹⁰⁰ jured when struck by a sliding door which fell outward from a boxcar owned by The Pennsylvania Railroad and in the possession and control of the Western Maryland Railway at the time of the accident. The defendant-appellees demurred on the ■ground that a wife in Maryland has no cause of action for loss ■of consortium claimed to result from personal injuries of her •husband caused by the negligence of a third party. The court below sustained the demurrers without leave to amend. The .'plaintiff has appealed.

During the oral argument, it was stated on behalf of the appellees, without contradiction, that the husband of the appellant had sued the appellees in the United States District Court for the District of Maryland for injuries sustained by him in the accident which is the basis for the appellant’s present action, •and that his case had been settled before the institution of the ■appellant’s suit. 1 The loss of consortium, as used in the cases in Maryland and ■elsewhere, means the loss of society, affection, assistance and •conjugal fellowship. It includes the loss or impairment of sexual relations. There is no question as to the present state of ' the common law in Maryland as to the separate rights of a husband and a wife to recover for loss of consortium due to the •other’s injury as a result of the negligence of a third person. 'The husband has the right. Nicholson v. Blanchette, 239 Md. 168 , 210 A. 2d 732 (1965).

The wife does not. Coastal Tank Lines, Inc. v. Canoles, 207 Md. 37 , 113 A. 2d 82 (1955); Emerson v. Taylor, 133 Md. 192 , 104 Atl. 538 (1918) ; and see Nicholson , at 239 Md. 185 . In Cañóles, the Court re-examined the doctrine set forth in Emerson , which denies the wife’s right ■of recovery, and re-affirmed it, largely on the historical ground ¹⁰¹ that the husband’s right is based on the old common law concept that he has a proprietary interest in his wife’s services, that his right has survived only as an anomaly and that the doctrine should not be extended to give a similar right to the wife. Judge Henderson, for the Court, considered the case of Hitaffer v. Argonne Co., 183 F. 2d 811 (D. C. Cir.), cert. denied, 340 U. S. 852 (1950), which was the first decision giving the wife the right to recover for loss of her husband’s consortium in a negligence case, but noted that at the time of the decision Hilaffer had not been followed by any court of last resort.

Judge Henderson said that the doctrine of stare decisis was “peculiarly applicable” and that any prospective change was for the Legislature. In Nicholson , Judge Barnes, for the Court, re-affirmed Cañóles although he noted that, since Cañóles, Hitaffer had been followed in twelve states. The appellant contends that the Maryland common law, as established by this Court, is invalid because, under the Equal Protection Clause, discrimination against women as such is unconstitutional. She argues, further, that the refusal to accord wives the same right their husbands have is invalid because the distinction is made by the courts, not by the Legislature, and therefore violates Article 8 of the Maryland Declaration of Rights which provides for the separation of the legislative and judicial functions.

The latter argument ignores a basic function of the judicial process. The consideration of the distinctions between one group of facts and another in deciding the application of legal rules, the classification of relationships in the light of principles of justice, history and the social welfare, the determination of rights and liabilities according to status and general circumstance — these are of the warp and woof of our judicial system. See Holmes, The Common Law 117, and Cardozo, J. in Jacob & Youngs, Inc. v. Kent, 230 N. Y. 239, 242-43 , 129 N. E. 889, 891 (1921). It is judge-made law which decides the varying legal liability of an owner of land to persons upon his property according to whether they be invitees, licensees or trespassers, and the age below which infants cannot be charged with contributory negligence.

These, and many other classifications, are made as a necessary part of the judicial function. The ¹⁰² making of such determinations violates no principle of the separation of powers, for traditionally and as an inherent part of our system of government their formulation is a necessary part of the judicial duty. It has been held that the action of a state court is as subject to attack on the ground that it violates the Fourteenth Amendment as is the action of a state legislature. Shelley v. Kraemer, 334 U. S. 1, 17 (1948), and cases therein cited.

It is also true that when this Court is asked to examine a legal doctrine which it has laid down in past decisions in the light of a constitutional claim not previously raised, our function is somewhat different than it is when the constitutionality of a statute is attacked. In the latter situation, there is the presumption of the validity of the legislative enactment. The action reviewed is that of a separate depository of the sovereign power. When a court must review its own decisions, the action is one of self-examination.

A decision of a state appellate court remains the law unless and until it is overruled, not only because, on re-examination, it is generally believed to be correct by the court which made it, but because of the doctrine of stare decisis. However, stare decisis is a policy rather than a presumption. Under that policy, for reasons of certainty and stability, changes in decisional doctrine are left to the Legislature. But if a past decision is found to be violative of the federal constitution, the policy of stwe decisis cannot save it.

That policy entails the re-affirmation of a doctrine even though, if considered for the first time, the court might reach a different conclusion. When the attack upon the doctrine is based on federal constitutional grounds, the Court must consider the decisions afresh from the point of view, not of what is desirable as a matter of state law, but of the impingement of constitutional requirements. In brief, the appellant argues that there is an invalid discrimination in according the right to the husband and denying it to the wife because husband and wife now have equal status in the law; that the Married Women’s Act of 1898, Code (1957) Article 45, Section 5, expressly gave married women power to sue for torts committed against them; that discriminations against women as such are invalid; and that the discrimination ¹⁰³ established by the Maryland decisions is unjustified by logic, modern social concepts, or the facts of life. The appellees answer that, under the decisions of the Supreme Court of the United States, sex is not necessarily an invalid basis for classification ; 2 that the law gives the married woman many rights as wife which the married man does not have as husband; that the Married Women’s Act relieved married women of legal disabilities but did not create new causes of action; that, while the anomaly of an action by the husband is entrenched in the law, there is no sound reason to extend the anomaly to parties not burdened by the obligation of support; and that there will be great danger of double recovery if the right were granted to the wife.

Finally, it is argued that, if the wife should prevail in her constitutional argument, the rights of husband and wife should be equalized by the denial of the action to both. Many of these arguments, pro and con, were considered by this Court in arriving at its conclusions in the cases dealing with loss of consortium as a common law right. As those decisions evidence, considerations of fairness and the balancing of interests may be as relevant in formulating a common law rule as in arriving at a constitutional decision. Nevertheless, the constitutional question was not raised in our prior adjudications, nor, apparently, had there then been decisions in other jurisdictions on the impact of the Equal Protection Clause.

Before considering the decisions on the constitutional question, we deem it appropriate to refer to recent developments in the common law as to the wife’s right to sue for consortium. In Igneri v. Cie. de Transports Oceaniques, 323 F. 2d 257 (2d Cir. 1963), the court held that the maritime law gave the wife of a longshoreman no action for loss of consortium due to injuries to her husband resulting from negligence or unseaworthiness. The opinion was written by Judge Henry Friendly, one of the pre-eminent jurists of our time. Before reaching the maritime question, Judge Friendly exhaustively considered the common law authorities on the right to recover for loss of eon ¹⁰⁴ sortium in an action based on the negligence of a third party.

He found that twelve jurisdictions recognized the right (one by statute), and nineteen refused to grant it. The great majority of legal commentators, he found (as did Judge Henderson in Cañóles), argued for the right. 3 ¹⁰⁵ Judge Friendly analyzed the arguments for and against the granting of the right and concluded: “With the common law authorities so conflicting and the opposing arguments so nearly in balance, we turn to * * * relevant elements of maritime law.” 323 F. 2d at 265 . These elements, he held, led to the conclusion that the wife’s claim, in the case before the court, must be denied. In Igneri, the constitutional question was not before the court.

The comparatively few courts which have passed upon the wife’s claim as a constitutional right under the Equal Protection Clause are divided in their decisions. In Owen v. Illinois Baking Corp., 260 F. Supp. 820 (W. D. Mich. 1966), a judgment was returned in favor of the plaintiff’s husband for injuries received in an automobile collision between cars driven by the plaintiff’s husband and an employee of the defendant. In a separate case, a judgment was returned in favor of the plaintiff for loss of consortium as a result of the accident. The defendant moved to set aside the judgment for the wife.

The situs of the accident was in Indiana; under the laws of that state, there is no right of a wife to recover damages for loss of consortium, although that right is recognized as to a husband. The District Court denied the motion to set aside the judgment in favor of the wife on the ground that a federal question was presented and that the denial of the right to sue for loss of consortium when applied to a wife but not to a husband, was clearly a violation of the wife’s constitutional right. The court said that “to draw such a distinction between a husband and wife is a classification which is unreasonable and impermissible,” and a violation of the Equal Protection Clause of the Fourteenth Amendment, 260 F. Supp. at 822 . In Carey v. Foster, 345 F. 2d 772 (4th Cir. 1965), the question was whether in Virginia a wife may maintain an action for loss of consortium resulting from negligent injury of the husband.

The court found it necessary to construe a Virginia statute to determine whether under it the husband has any right to recover for the loss of his wife’s companionship and affection. In its consideration of the meaning of the statute, the court said that if it were construed as giving a husband the right to recover damages for his own use and enjoyment because of the ¹⁰⁶ loss of his wife’s affection and companionship resulting from injuries negligently inflicted upon her, then “equality in the federal courts could be achieved only by recognition that the wife, too, had the same right of action.” 345 F. 2d at 773 . The court construed the Virginia statue as denying to the husband any right to recover for the loss of his wife’s consortium and held that under such construction considerations of equality required that the wife be allowed no recovery for the loss of her husband’s consortium. The quoted statement as to the effect of equality in the federal courts may be regarded as dictum, although it evidently played a part in the court’s construction of the statute. 4 The highest courts of Tennessee and of West Virginia have held that the refusal to allow the wife recovery for the loss of her husband’s consortium, although the husband is allowed the right to recover for the loss of the wife’s consortium, does not constitute a denial of equal protection under the Fourteenth Amendment.

Krohn v. Richardson-Merrell, Inc., 406 S. W. 2d 166 (Tenn. 1966), cert. denied, U. S. Sup. Ct., March 20, 1967; Seagraves v. Legg, 147 W. Va. 331 , 127 S. E. 2d 605 (1962). In Krohn, supra, the court said: “[I']t is our view that many and obvious differences between what, by legal logic, is recoverable by the male spouse for injury, on the one hand, and the female spouse on the other, may be conceived of. In short, under this view, the Tennessee rule with respect to recovery for loss of consortium does not work a ‘discrimination’ but no more than a practical and logical classification.” 406 S. W. 2d 168 -69.

We have referred to the necessity of re-examining our past decisions in the light of the constitutional question now raised. As a result of that re-examination, we find it unnecessary to decide whether the Equal Protection Clause compels a holding that the wife shall have a separate cause of action for loss ¹⁰⁷ of her husband’s consortium due to injuries sustained by him because of the negligence of a third party. In arriving at that determination, we have endeavored to re-evaluate the meaning of the long history behind our previous decisions in the light of present juridical concepts, to regard the realities of the connubial relationship, to consider what protection can properly be accorded to injury to that relationship within the practical limitations of effective legal action and to ascertain some rule which will be fair, in practice as well as in legal theory, to defendants as well as to plaintiffs. We have asked ourselves what is the real reason for the almost universal criticism of the rationale of the common law rule under which a husband is entitled to be compensated for loss of his wife’s consortium.

Is not the criticism based on the reliance upon the discarded theory that the husband has proprietary rights in his wife, the out-worn fiction that he has a property interest in her services? The real objection to the rule, we believe, does not go to its postulate that, to some extent at least, an injury to the marriage relationship is a compensable wrong. That thrust of the old rule has not been attenuated by time but has become more potent. Even the wife was allowed to recover for wrongful interference with the marital entity for a direct interference by alienation of affections, until, as in Maryland, for practical reasons unrelated to legal principle, such actions were barred by statute.

The present opprobrium in which the old rule is generally held is based on repugnance for the medieval concept that, during the marriage, the legal existence of the wife is suspended or incorporated into that of the husband. However, insofar as the rule embodies a right to recover for an injury to the marital entity, we believe that it is in accord with modern legal thought. To overrule the common-law doctrine and to deny the claim of the husband as well as that of the wife in order to attain equality of treatment between them, as a few courts have done, 5 it seems to us, is to throw out the baby with the bathwater. ¹⁰⁸ There is a basic and vital reality, which we believe is not sufficiently recognized by the decisions which either grant or deny the wife some right of recovery in the situation we are considering. Beyond and apart from the legal obligations of the husband to support his wife, to pay her alimony if he deserts her and other duties connected with a partial dissolution of the marriage ties, there is, in a continuing marital relationship, an inseparable mutuality of ties and obligations, of pleasures, affection and companionship, which makes that relationship a factual entity.

That concept is at least partially recognized in the law. At common law and still today in many states, of which Maryland is one, husband and wife can hold property as tenants by the entirety and neither can dispose of any part of it without the assent of the other. In legal contemplation, each is possessed of the entire estate and is entitled to the whole “by reason of the legal unity of their existence.” McCubbin v. Stanford, 85 Md. 378, 390 , 37 Atl. 214 (1897); Columbian Carbon Co. v. Kight, 207 Md. 203 , 114 A. 2d 28 (1955). We see no valid reason why that concept should not be extended to permit recovery for wrongs negligently caused to the legal unity through the physical injury of either spouse.

If the right to sue for loss of consortium is regarded- as available only to the husband and wife jointly, there is no longer a question of unequal treatment of wife and husband by the courts. They are treated in legal contemplation as the partners they are in fact. The wife does not receive the separate right to sue, but she is accorded a new right to recover as part of the marital entity. As to- the husband, the change is both a restriction and enlargement of his right as it has heretofore existed.

He can no longer sue separately for loss of consortium, but, to the extent that any loss to the wife is embodied in the new cause of action, the joint suit represents a possible increase in the damages which may properly be recovered, even though the proceeds go to both spouses instead of to the husband alone. That both spouses suffer when the marriage relationship is adversely affected by physical injury to either is a fact evidenced, if not by logic, by human experience since the institution of marriage became a basic part of our mores. If the husband is the one injured, it is not only the wife who is affected ¹⁰⁹ by reason of any resultant change of the husband’s personality or ability to engage in all the intangible associations which marriage brings; he too suffers the effect of the change, if only in reaction to his wife’s unhappiness. Today, at least, it is unquestioned that the desire to have children and the pleasures of sexual intercourse are mutually shared.

If the husband’s potency is lost or impaired, it is both the man and woman who are affected. If the physical injury is to the wife, she sustains the same kind of loss in the marital relation as he does in the converse situation. It is because these marital interests are in reality so interdependent, because injury to these interests is so essentially incapable of separate evaluation as to the husband and wife, that the conception of the joint action seems to us a fair and practical juridical development. It takes into account, we believe, the weighty criticism of the old law which restricts the right of recovery to the husband as well as the substantial arguments against creating a new and separate cause of action for the wife.

One of the arguments most frequently advanced