Baldwin v. State

• Decision Date: 07 December 1965
• Docket Number: No. 220,220
• Parties: Harold BALDWIN, Sr., and Beatrice Baldwin v. STATE of Vermont and Vermont Railways, Inc.
• Court: Vermont Supreme Court

Page 492

215 A.2d 492

125 Vt. 317

Harold BALDWIN, Sr., and Beatrice Baldwin v. STATE of Vermont and Vermont Railways, Inc.

No. 220.

Supreme Court of Vermont.

Dec. 7, 1965.

Ehrich & Mollica, Bennington, for plaintiffs.

John A. Calhoun, Montpelier, Ryan, Smith & Carbine, Rutland, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The plaintiffs are husband and wife. The husband, Harold Baldwin, Sr., sues to recover for personal injuries sustained when the motor truck he was operating was struck by a railway locomotive, operated by the defendants, at a highway crossing. His complaint sets forth various duties owing from the defendants' failure to use reasonable care for his safety and others in approaching grade crossing where the accident occurred. He complains that the defendants disregarded their several duties to him in approaching the crossing at an excessive speed and without proper warning to motorists using the crossing and especially to this plaintiff. There are other allegations that the defendants failed to maintain the railroad crossing in a safe condition for the protection of persons using the highway and especially the plaintiff who was unable to extricate himself and his vehicle from the crossing.

There is no allegation that Mrs. Baldwin was with her husband at the time of the accident. The standing of the plaintiff, Beatrice Baldwin, is based entirely on her claim that she is the wife of her co-plaintiff and that, as a result of the negligence of the defendants, she has been deprived of the consortium of her husband, the plaintiff, Harold Baldwin, Sr., to her damage in the amount of $25,000. The trial court dismissed the complaint of Mrs. Baldwin on motion of the defendants. On application of the plaintiffs the cause was passed to this Court to review that ruling before judgment, as provided in 12 V.S.A. § 2386.

The elements which constitute the wife's claim for loss of consortium are not specified in the complaint. The plaintiffs' brief, however, makes it clear that the wife does not seek compensation for loss of her husband's support for she recognizes that her husband's loss of earning power is an element of recovery in his action. The definition relied upon by the plaintiff is that of her husband's affection, the conjugal society, aid and cooperation in every conjugal relation, as the term is defined in Woodhouse v. Woodhouse, 99 Vt. 91, 113, 130 A. 758.

There is no dispute that at common law a married woman had no right of action to sue for the loss of consortium of her husband. Since the Married Women's Act the wife can maintain an action for alienation of affections. Independent of property considerations, a remedy was afforded directly to the injured wife on the theory that the enticement or corruption of the minds and affections of one's consort is a civil wrong for which the offender is liable to the injured husband or wife. Knapp v. Wing, 72 Vt. 334, 338, 47 A. 1075.

In alienation cases loss of consortium on the part of the injured spouse is the gist and essence of the wrong. The wrong is intentional and the element of punishment is involved. Shedrick v. Lathrop, 106 Vt. 311, 317, 172 A. 630; Jenness v. Simpson, 84 Vt. 127, 141, 78 A. 886.

In this jurisdiction the wife's remedy for disruption of the marriage relationship has been restricted to wrongs directly inflicted upon the marital obligation. Other wrongful acts which have indirectly accomplished this result, although done intentionally against the husband, were held not actionable at the suit of the wife. Nieberg v. Cohen, 88 Vt. 281, 289, 92 A. 214, L.R.A. 1915C 483.

Recognizing this restriction, the plaintiffs candidly call upon this Court to overrule the prevailing law as a proper exercise of the judicial function. It is said this is an essential step to keep the law apace with current mores and changing values. We are referred to several recent decisions in a minority of jurisdictions where the judicial process has been thus applied. Dini v. Naiditch, 20 Ill.2d 406, 891, 170 N.E.2d 881, 86 A.L.R.2d 1184; Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227, 232; Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 815, 23 A.L.R.2d 1366.

It does not aid the question to analogize the present action with actions for alienation of affections. The historical origins and purposes of the remedies are entirely different. 1 Street, Foundations of Legal Liability, Chapter VI, p. 71, Chapter XVIII, p. 263.

In negligence the first observation is that 'it figures almost exclusively in wrongs wherein the harm element manifests itself in physical hurt to the body or in forceful damage to property.' Ibid at p. 71. In consequence, the law allows recovery where the wrongdoer owed an antecedent duty to use care with respect to the safety of the person or property of the victim seeking recovery. Fitzsimmons v. Joslin, 21 Vt. 129, 140; Jackson v. Rutland & Burlington Railroad Co., 25 Vt. 150, 156; Coburn v. Village of Swanton, 94 Vt. 168, 170, 109 A. 854; Terrill v. Spaulding, 115 Vt. 342, 346, 61 A.2d 611; Agosta v. Granite City Realty Co., Inc., 116 Vt. 526, 528, 80 A.2d 534; Woodruff Motors, Inc. v. Commercial Credit Corp., 123 Vt. 404, 406, 190 A.2d 705.

In essence, this requirement is an acceptance of the classic statement in Heaven v. Pender, 11 O.B.D. 503 (1883): 'that actionable negligence consists of the neglect of the use of ordinary care or skill towards a person to whom the defendant owes a duty of observing ordinary care or skill by which neglect the plaintiff without contributory negligence on his part, has suffered injury to his person or property.'

Mrs. Baldwin's action must stand, if it will, on a breach of a duty owing to her alone. A...