Deems v. Western Maryland Ry. Co.

Citation231 A.2d 514,247 Md. 95
Decision Date07 June 1967
Docket NumberNo. 362,362
PartiesFay DEEMS v. WESTERN MARYLAND RAILWAY COMPANY et al.
CourtMaryland Court of Appeals

James G. Perry, Baltimore (Martin Moncarz, Baltimore, on the brief), for appellant.

Melvin J. Sykes, Baltimore (William C. Purnell, Rowland Posey and Paul M. Higinbothom, Baltimore, on the brief), for appellee Western Maryland Ry. Co.

Clayton W. Daneker, Baltimore (Loring E. Hawes, Baltimore, on the brief), for appellee Pennsylvania R. Co.

Before HORNEY, MARBURY, OPPENHEIMER, McWILLIAMS and FINAN, JJ.

OPPENHEIMER, Judge.

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 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 A. 538, 5 A.L.R. 1045 (1918); and see Nicholson, at 239 Md. 185, 210 A.2d 732. 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 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., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (D.C.Cir.), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (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 Hitaffer 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 Canoles although he noted that, since Canoles, 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, 242-243, 129 N.E. 889, 891, 23 A.L.R. 1429, (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 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, 68 S.Ct. 836, 92 L.Ed. 1161 (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 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...

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