Denied July 12, 1967. Opinion modified.
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 injured
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.
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 Canoles, 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
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
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 stare 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
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 consortium
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
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:
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
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,
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.
The 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
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 against allowing the wife a separate right of action for loss of her husband's consortium is that such recognition would lead to a "double recovery". The husband, it is contended, may recover, not only for lost earnings (part of which presumably goes to support his wife) but also for lost or diminished ability to engage in sexual intercourse and for the value of his wife's nursing services. If the wife were permitted a separate recovery, she might presumably obtain a verdict which would encompass allowances for some of the same damages. There is much force in these arguments, but it is suggested that their implied converse is that but a single wrong has been sustained. If, in separate actions, the husband and wife would duplicate their damages, is not that duplication inherent in any separation of the actions? In any event, the danger of duplication, with its injustice to the defendant, would be overcome or at least be minimized, if the injury to the marital relationship were regarded as creating a single right of action, to which both husband and wife must be parties, and in which only a single, joint verdict would be allowed. The joint action for injury to the marriage
In Igneri, Judge Friendly said: "It is true that * * * this danger [of double recovery] would be minimized where, as in the present case, the husband and wife have joined their claims so that these may be tried to a single jury." 323 F.2d at 264. He observed, however, that once the wife's cause of action was recognized, the courts would have no power to require such a joinder. Igneri was a case under the federal maritime law. No such restriction applies in Maryland.
In an exhaustive and cogent opinion after Igneri, the Supreme Court of New Jersey granted the wife the right to sue for loss of her husband's consortium because of injuries to him as a result of the defendant's negligent construction and maintenance of a gas line. Ekalo v. Constructive Service Corp., 46 N.J. 82, 215 A.2d 1 (1965). Justice Jacobs, who delivered the opinion for the court, pointed out that the husband's right to sue for loss of consortium due to injuries negligently inflicted upon his wife was fully established in New Jersey. He said, however, that earlier decisions intimating that the wife did not have a corresponding right were inconclusive and not controlling. He rested the decision on the reasoning of Hitaffer and the cases which have followed it. In his opinion, Justice Jacobs said:
The procedural limitations imposed in Ekalo are of importance
The requirement that the separate actions of the husband for his physical injuries and that of his wife, for loss of consortium, be joined for purposes of trial comes close to the concept that the cause of action for loss of consortium is only a joint one. It is less difficult for the trier of facts to award a joint verdict for the injury to the marital relationship, if the elements involved are properly defined, than it is to award separate damages for losses which, in some respects, are essentially indivisible. While we have found no decision which expressly considers the concept here advanced, several commentators have discussed it favorably.
Of course, if such a joint cause of action be recognized, to that extent the wife will be accorded a right which she did not previously have and the husband's unrestricted right, previously acknowledged, will be curtailed in that he must institute a joint action with his wife. These are changes in the pre-existing law, but as a great legal scholar pointed out, while generally
In the situation before us, there are weighty reasons for "drawing the line at another angle". In Canoles, Judge Henderson said, for the Court: "If the case were one of first impression, and the authorities were divided, arguments based on abstract theory and logical symmetry might have more weight." 207 Md. at 49. As Judge Barnes, for the Court, noted in Nicholson, the authorities since Canoles have become much divided, and the division continues. In the approach we take to the question, the case is one of first impression. On the applicability of stare decisis, Judge Henderson thought that the matter was peculiarly one for the Legislature, because only that body could make the change prospective. Since Canoles, we have held that a change of law effected by the Court, with limited exceptions, can be made prospectively. Schowgurow v. State, 240 Md. 121, 131-34, 213 A.2d 475 (1965); Schiller v. Lefkowitz, 242 Md. 461, 219 A.2d 378, cert. denied, 385 U.S. 947 (1966). The Supreme Court has gone even further in denying retroactive effect to a change in the law which it effected. Johnson v. New Jersey, 384 U.S. 719 (1966). Finally, a federal constitutional question is here involved. When the construction of a statute is before us, it is well established law that the enactment will be construed so as to avoid a conflict with the constitution whenever that course is reasonably possible. Stevens v. City of Salisbury, 240 Md. 556, 566, 214 A.2d 775 (1965), and cases therein cited. The same principle is applicable in the situation now before us. The reasons for which we favor the adoption of the joint-right concept are based, we believe, on legal and social policy and a weighing of the interests involved. However, the avoidance of a possible conflict between the present law and the federal constitution is an additional reason for adopting now what we think is a sound solution, rather than to postpone the entire question for possible future legislative action.
When the suit of the physically injured spouse is tried with the joint action for injury to the marital relationship, the jury should be instructed in detail, where appropriate, as to the particular matters for which compensation is to be made to the physically injured spouse in his or her separate action, if there be a recovery, and the matters to be considered only in fixing the damages in the joint action. For example, if the husband is injured as a result of the defendant's negligence and his injuries include loss or diminution of sexual capacity, he is entitled to compensation therefor, but the amount of recovery for that element, if any, is to be fixed only after taking into consideration the amount awarded for the loss to the marital relationship by reason of such injury during the joint life expectancy of the husband and wife. The husband's right to recover for loss of earning power remains part of his own claim, and the wife's claim to support is not included in the joint action. These and other corollaries of the rule can be specifically worked out on a case to case basis, in the immemorial manner of the law's development. We believe that, on the whole, such questions as may arise will involve less practical difficulties than
For these reasons, we hold that, when either husband or wife claims loss of consortium by reason of physical injuries sustained by the other as the result of the alleged negligence of the defendant, that claim can only be asserted in a joint action for injury to the marital relationship. That action is to be tried at the same time as the individual action of the physically injured spouse. Nothing in this holding is intended, expressly or impliedly, to affect the damages awardable under Maryland's Wrongful Death Statutes or Workmen's Compensation Act. We do not decide the effect which any federal statute, such as the Federal Employers' Liability Act, may have in foreclosing any claim for consortium under the Maryland law in cases where such a statute is applicable.
The holding here made shall apply to all future and pending actions, except for claims by husbands or wives which, prior to the date of the filing of this opinion, have been effectively barred by settlement, judgment, the Statute of Limitations, or otherwise. As pointed out in Ekalo, it would be unfair if the holding attempted to affect rights of defendants which have so accrued. See also Schiller v. Lefkowitz, supra, at 242 Md. 475-76.
Because of this limitation upon the application of our holding, the appellant in this case cannot prevail. She waited until after her husband's case for physical injuries had been settled before she instituted her action for loss of consortium. If she had instituted her action before the settlement of her husband's claim and that action were still pending, she and her husband, absent any question of limitations, would be entitled to file a joint action, in accordance with this opinion, for injury
Judgment affirmed; costs to be paid by appellant.
One jurisdiction, New Jersey, despite indications to the contrary in its decisions, held that a wife could recover for loss of consortium. Ekalo v. Constructive Service Corp., 46 N.J. 82, 215 A.2d 1 (1965).
Of the eighteen jurisdictions which have considered the question since Igneri, eight did so apparently for the first time. Two of these allowed recovery. Owen v. Illinois Baking Corp., 260 F.Supp. 820 (W.D. Mich. 1966); Clem v. Brown, 207 N.E.2d 398 (Ohio C.P. 1965). The other six denied recovery. Potter v. Schafter, 161 Me. 340, 211 A.2d 891 (1965); State Farm Mut. Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N.W.2d 36 (1963); Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321 (1963); Rush v. Great American Ins. Co., 376 S.W.2d 454 (Tenn. 1964), and Krohn v. Richardson-Merrell, Inc., 406 S.W.2d 166 (Tenn. 1966), cert. denied, U.S. Sup. Ct., March 20, 1967; Baldwin v. State, 125 Vt. 317, 215 A.2d 492 (1965), and Herbert v. Layman, 125 Vt. 481, 218 A.2d 706 (1966); Carey v. Foster, 345 F.2d 772 (4th Cir.1965) (applying a Virginia statute, but see strong dictum in favor of recovery on basis of equal protection clause).
See also Prosser, Torts § 119 (3d ed. 1964), and the following recent law review commentaries favoring recovery by the wife: 26 Md. L. Rev. 361 (1966); 10 St. Louis U.L.J. 276 (1965); 10 S.D.L. Rev. 120 (1965); 5 Washburn L.J. 112 (1965); 18 West. Reserve L. Rev. 621 (1967).
"Unless the action of the spouse directly injured is expanded to include the loss of consortium of the other, the one indirectly injured should have a cause of action, although perhaps it may be fair to require consolidation of the actions for trial, or to find a waiver under certain circumstances." Foster, "Relational Interests of the Family", 1962 Ill. L. Forum 493, 520. See also, Fridman, "Consortium as an `Interest' in the Law of Torts", 32 Canadian Bar Rev. 1065, 1077-80 (1954); Note, 61 Colum. L. Rev. 1341, 1353, 1356 (1961); 29 N.C.L. Rev. 178, 183 (1951); 25 Tulane L. Rev. 293, 296 (1951); 5 Washburn L.J. 112, 123-25 (1965).
1 Harper & James, Law of Torts, 640 (1956), say that "to state that there is but one cause of action which is `divided' between the wife and husband is not accurate since the nature of the husband's interest is different and distinct from the wife's." However, that criticism is not pertinent if the mutuality of the joint interest is properly limited and the husband retains the right to recover for his individual injuries.