Sawyer v. Bailey

• Decision Date: 15 April 1980
• Parties: Daniel SAWYER and Lynn Jackson Sawyer v. Ralph BAILEY.
• Court: Maine Supreme Court

Page 165

413 A.2d 165

5 A.L.R.4th 292

Daniel SAWYER and Lynn Jackson Sawyer v. Ralph BAILEY.

Supreme Judicial Court of Maine.

April 15, 1980.

Lowry, Platt & Givertz, Thomas P. Downing, Jr., orally, Phyllis G. Givertz, Portland, for plaintiff.

Norman & Hanson, Theodore H. Kirchner, orally, Portland, for defendant.

Before McKUSICK, C. J., WERNICK, GODFREY and GLASSMAN, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice.

Their wedding date set for September 17, 1977, Daniel Sawyer and Lynn Jackson on the third day of July made it public and announced to the world that they were engaged to marry. On the fourteenth day of July as Sawyer with his fiancee was turning into the driveway of Grace Press in Falmouth, Maine, to pick up their printed wedding invitations, their automobile was involved in an accident with the defendant's vehicle. Lynn Jackson received an injury to her neck and back for which she was treated by a physician up to the time of her marriage to Daniel Sawyer on September 17, 1977 and thereafter. Her back condition deteriorated precipitously in January, 1978, and surgical intervention became necessary and was performed. Her convalescence was long and painful.

On March 1, 1978 the newly-weds sued the defendant, Ralph Bailey, in the Superior Court, Cumberland County, in a two-count complaint, the plaintiff-wife, Lynn Jackson Sawyer, in the first count seeking damages for her personal injuries, while her husband, Daniel Sawyer, in the second count sought to recover damages for the loss of his wife's consortium due to her injuries allegedly caused by the defendant's negligence. On May 24, 1979 the parties filed a stipulation of dismissal of the first count of the complaint, since they had reached a settlement in relation to the wife's cause of action and judgment to that effect was properly entered. The remaining viability of the second count relating to the husband's alleged loss of his wife's consortium, however, was contested and submitted to the Court for determination on a motion for partial summary judgment. The Superior Court Justice ruled that

"there is no cause of action for loss of consortium on behalf of an engaged party, even though there is a later marriage, and even though there is an engagement at the time of injury,"

and granted the reference motion on July 6, 1979. From the entry of summary judgment respecting Count II of the complaint on July 11, 1979, the plaintiff, Daniel Sawyer, appeals to this Court. We deny the appeal.

The single issue in the instant case may be stated as follows: Does a cause of action for loss of consortium exist in favor of a husband where the injury to the wife occurred before the marriage while the couple was engaged to marry? We answer in the negative.

The authorities are unanimous in limiting the right of consortium to the marital relationship. The right of consortium has been said to grow out of the marriage relationship. Marri v. Stamford St. R. Co., 84 Conn. 9, 78 A. 582, 33 L.R.A., N.S., 1042, Ann.Cas. 1912B 1120 (1911); Tribble v. Gregory, Miss., 288 So.2d 13 (1974); Wagner v. International Harvester Company, 455 F.Supp. 168 (D.Minn., 4th Div., 1978). Absent the lawful relationship of husband and wife, there can be no recovery for loss of consortium. Domany v. Otis Elevator Company, 6th Cir., 369 F.2d 604 (1966), cert. denied, 387 U.S. 942, 87 S.Ct. 2073, 18 L.Ed.2d 1327.

Where the injured person received his or her injury prior to marriage, the other spouse upon marriage has no cause of action for loss of consortium of his or her previously injured marriage partner, even though they were engaged to be married at the time of the injury. Rademacher v. Torbensen, 257 App.Div. 91, 13 N.Y.S.2d 124 (1939); Tong v. Jocson, 76 Cal.App.3d 603, 142 Cal.Rptr. 726 (1977). The plaintiff cites in support of his contention the case of Sutherland v. Auch Inter-Borough Transit Co., 366 F.Supp. 127 (E.D.Pa.1973). In Sutherland, the federal court purported to follow Pennsylvania law. Although the highest court of the Commonwealth has not ruled on the question, lower courts in Pennsylvania, both before and after Sutherland, refused to sanction a cause of action for loss of consortium where the injury occurred prior to marriage, even though the couple were engaged at the time. See Sartori v. Gradison Auto Bus Co., Inc., 42 Pa.D. & C.2d 781 (1967) and Rockwell v. Liston, 71 Pa.D. & C.2d 756 (1975). For that reason, Sutherland, as an authority, would not carry much persuasiveness.

Generally speaking, a mere engagement to marry does not entitle the parties to the legal protection afforded to spouses. Nelson v. Melvin, 236 Iowa 604, 19 N.W.2d 685 (1945); Conway v. O'Brien, 269 Mass. 425, 169 N.E. 491 (1929); Homan v. Hall, 102 Neb. 70, 165 N.W. 881 (1917); Davis v. Condit, 124 Minn. 365, 144 N.W. 1089 (1914); Prosser, Law of Torts, 4th Ed. 1971, § 124, p. 874. See also Jowett v. Wallace, 112 Me. 389, 92 A. 321 (1914).

Furthermore, the authorities agree that the right of consortium tracks the existence of the marital relationship and terminates at its dissolution by death or divorce. Archie v. Hampton, 112 N.H. 13, 287 A.2d 622 (1972); Walden v. Coleman, 105 Ga.App. 242, 124 S.E.2d 313 (1962); Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952).

Thus, the law is concerned with the protection of the "relational" interests of married persons and recognizes as an actionable tort any interference, intentional or negligent, with the continuation of the relation of husband and wife, such as the right to damages for the loss of consortium of either one of the spouses. See Prosser, Law of Torts, 4th Ed. 1971, § 124, p. 873. But, as stated in Potter v. Schafter, 161 Me. 340, at 341, 211 A.2d 891, at 892 (1965), we are aware that as a common law court we have the power to grant a new cause of action for the redress of rights, or, as requested by the plaintiff in the instant case, to expand the cause of action for the recovery of damages for loss of consortium in a tortious injury case so as to encompass parties who are engaged to marry at the time of the tortious incident and who thereafter do marry.

We would point out that the question is one of first impression in Maine. We recognize that the plaintiff had an inchoate expectation that third persons would use reasonable care in relation to the person of his fiancee so that his prospective marital rights would not be infringed. Although our society regards it of the highest primacy that a remedy be afforded for the redress of wrongs caused by tortious conduct (Moulton v. Moulton, Me., 309 A.2d 224 (1973)), nevertheless, we discern countervailing policy factors which persuade us to confine consortium rights to cases where the tortious injury occurred while the parties were married, one to the other.

The general rule is that no person has a right of action against a wrongdoer, unless that person is personally injured. The cause of action accrues, generally, when the tort is committed. See Betts v. Norris, 21 Me. 314 (1842); Jedzierowski v. Jordan, 157 Me. 352, 172 A.2d 636 (1961); Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962). Cf. Williams v. Ford Motor Company, Me., 342 A.2d 712 (1975). When the alleged antenuptial tort was committed by the defendant against the woman plaintiff, the man plaintiff suffered no injury, because he possessed no marital right at that time, never having assumed any marital obligations. When Daniel Sawyer later took Lynn Jackson as his lawful wedded wife, he took her for better or for worse in her then existing state of health, voluntarily taking unto himself any marital deprivation that might result from his wife's premarital injury. Rademacher v. Torbensen, supra; Booth v. Baltimore & O. R. Co., 77 W.Va. 100, 87 S.E. 84 (1915); Reading v. Pennsylvania R. Co., 52 N.J.Law. 264, 19 A. 321 (1890).

As a general rule, at least, a tort to the person of one individual does not make the tortfeasor liable to another individual merely because the injured person was under a contract with that other person, unless the wrong is done with intent to affect the contractual relations. See Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677, 679 (1931); Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927); The Federal...