Lead Opinion
This is an appeal from a judgment of the trial court sustaining defendant’s motion to dismiss on the ground that the petition failed to state a cause of action.
The petition alleges that due to defendant’s negligent operation of an automobile her husband was permanently disabled and rendered incapable to carry on marital relations. It states that plaintiff “has been permanently deprived of the aid, services, support, affection, society, companionship and consortium, including sexual relations, of her said husband” and asks damages on account thereof.
While not appearing in the record, it appears from appellee’s argument that the husband’s cause of action against the defendant has been settled and dismissed with prejudice. Assuming such to be the case we deem it to be immaterial to this appeal and the issue here presented.
The sole question for determination is: May a wife maintain an action for damages for loss of consortium against one
I. “Consortium” at common law included not only conjugal fellowship of husband and wife, but also service as a prominent, if not the dominant, factor; not so much the service resulting in the performance of labor or the earning of wages, as the service which contributed and assisted in all the relations of domestic life. Hinnant v. Tide Water Power Co.,
While this exact question has been before this court on at least one other occasion it does not appear to have been determined and is therefore one of first impression. In the early case of Lewis v. Maddy,
While appellee asserts, perhaps correctly, this court has never passed upon the right of the husband to maintain such an action based upon negligence, we find many expressions of the court bearing, at least indirectly, upon the question.
In McKinney v. Western Stage Co., 4 (Clarke) Iowa 420, a husband sought to recover damages due to his wife’s injury caused by defendant’s negligence. At page 423 we said: “We suppose that at common law, the rule is well settled that for an injury to the person of the wife during coverture, by battery, or to her character, by slander, or for any such injury, the wife must join with her husband in the suit. When, however, the injury is such that the husband receives a separate loss or damage, as if in consequence of the battery, he has been deprived of her society, or been put to expense, he may bring a separate action in his own name. * * * It therefore follows, that in the case before us, the husband might maintain his separate action for any loss sustained by him in consequence of being deprived of the society of his wife, or being put to expense on account of the injury.”
In McDonald v. Chicago & N.W. R.R. Co.,
Lane v. Steiniger,
There is another type of action, recognized at common law and in this state, where the right of consortium is deemed to be a property right entitled to protection in the courts. For the alienation of the affections of a spouse an action could, at common law and in this state, be maintained by either the husband or the wife in her own name, depending upon which is the injured party. The gravamen of this action is the loss of consortium. 41 C. J. S., Husband and Wife, section 11; 42 C. J. S., Husband and Wife, section 665; Nolin v. Pearson,
At early common law such an action was not permitted by a wife. This was on the theory that the wife had no right of consortium, only the husband could be damnified by a loss thereof ; or that, assuming the existence of a right, the restrictions of coverture required that the husband be joined as a party plaintiff. When this was done it created the anomalous situation of one joint tort-feasor suing another. Nolin v. Pearson, supra; Duffies v. Duffies,
Today, except where such an action is prohibited by statute, the general rule is to allow the wife to maintain such an action. However, in so doing, the courts, including Iowa, say that before liability can attach to a defendant it must appear that the acts done which effectuated the alienation must have been done with intent to produce such results; that it must appear to be a wrong directed at the wife, an intent to deprive her of her spouse’s affections. In Rank v. Kuhn, supra, it is said that plaintiff in order to recover must show three things: (1) wrongful conduct of the defendant (2) loss of affection or consortium and (3) causal connection between the conduct and the loss. See also Maahs v. Schultz,
While at common law the husband and wife were considered as one, and he was the one, this archaic rule has been changed or modified by various legislative enactments and thus the status and rights of a married woman depend in a great measure upon the statutes in the respective states. While this court in approaching a matter of first impression should and does give careful consideration to the decisions of other jurisdictions upon the question, and, in the absence of statutory expression, to the common-law rule, its ultimate duty is to adopt that rule best supported by logic and sound reasoning and in accord with the spirit of our own legislative expression. Nickel v. Hardware Mutual Casualty Co.,
Perhaps the dominant reason at common law for denying relief to the wife was her lack of capacity to sue at law except as she was joined with her husband as a party plaintiff. Such rule is no longer recognized in Iowa. Rule 10, R. C. P., provides “A married woman may sue or be sued without joining her husband.” See also section 1687, Code of 1851.
Again,- at common law, a wife’s property, at least during coverture, belonged to the husband, with the possible exception of choses in action which became his if and when realized upon during the coverture. The Iowa rule is different. Section 597.1, Code of 1954, provides: “A married woman may own in her own right, real and personal property, acquired by descent, gift, or purchase, and manage, sell, and convey the same, and dispose thereof by will, to the same extent and in the same manner the husband can property belonging to him.” See section 2202, Code of 1873.
Section 597.18, Code of 1954 (section 1454, Code of 1851),
Section 613.11, Code of 1954, allows a woman to sue for damages because of a negligent or wrongful injury to her, and specifically states that “there shall be no disabilities or restrictions” upon her right to recover. While we question the applicability of this section to the instant situation as it probably refers to bodily injury, its history is enlightening as to the legislative attitude regarding the status and rights of married women. See chapter 214, section 2, Acts 44th G. A.; chapter 297, Acts 49th G. A.
The foregoing statutes, even without giving to them a liberal construction to which they are entitled, Jones v. Jones,
Appellant cites and relies primarily upon the case of Hitaffer v. Argonne Co.,
Some courts deny relief on the ground that to allow the wife to recover would be to allow double recovery for the same wrong. These courts concede the right of the husband to recover. Bernhardt v. Perry,
Some of the cited authorities hold that the alleged loss to the wife is too remote and,yet recognize the right of the husband to recover where the wife has been incapacitated. Giggey v. Gallagher Transp. Co.,
While we recognize the almost total lack of precedent for allowing- appellant’s cause of action, we deem precedent to be worthy of support only when it can stand the scrutiny of logic and sound reasoning in the light of present-day standards and ideals. We think the reasoning and logic advanced in the Hitaffer case is sound; that the reasoning and logic advanced by the great weight of authority denying relief is not. We think the modern concept of a married woman’s status and rights is well stated in Follansbee v. Benzenberg,
“The old common-law rule that a wife had no right of action of this character obtained on the theory that the wife’s personality merged in that of the husband’s, that she had no right to hold property separate and apart from her husband, and had no right to sue in her own name. This hollow, debasing, and degrading philosophy, which has pervaded judicial thinking for years, has spent its course. These archaic notions no longer obtain. ‘So prone are the courts to cling to consuetudinary law, even after the reason for the custom has ceased or become a mere, memory, that it has required hundreds of years to obtain the meed of justice for married women.’ Bernhardt v. Perry,
Appellant’s petition alleged a cause of action and the trial court was in error in sustaining the motion to dismiss. Cause reversed and remanded. — Reversed and remanded.
Dissenting Opinion
(dissenting) — I respectfully dissent.
On July 15, 1953, Glen R. Acuff was in an automobile accident and was seriously and permanently injured. He maintained an action against defendant herein, which the record shows was dismissed with prejudice. We are, therefore, justified in assuming proper settlement ivas made with him. Plaintiff sued defendant for $75,000 damages for what really is loss of consortium. Motion to dismiss was sustained by the trial court, and this appeal followed. The question as to liability under these circumstances has not heretofore been decided by this court.
The majority opinion correctly states the weight of authority is against the ruling contained therein. The question involved in this case has been considered by the Supreme Court of at least twenty states and by some Federal Courts. There are two or three decisions supporting the majority opinion, and more than fifty decisions to the contrary. The majority opinion also correctly states that although there may be a large number of decisions to the contrary, if they are wrong this court should not hesitate to decide rightfully. However, I differ with the majority opinion as to the weight of authority being wrong.
I. Our Married Women’s Act statutes do not create a right of action in favor of plaintiff. The statutes of Iowa and R. C. P. rule referred to in the majority opinion are the following:
*282 “597.1 Property rights of married women. A married woman may own in her own right, real and personal property, acquired by descent, gift, or purchase, and manage, sell, and convey the same, and dispose thereof by will, to the same extent and in the same manner the husband can property belonging-to him.”
“597.18 Contracts of wife. Contracts may be made by a wife and liabilities incurred, and the same enforced by or against her, to the same extent and in the same manner as if she were unmarried.”
“613.11 Women — injury or death. In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician’s services, nursing and hospital expense, and the value of her services as wife, or mother, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the husband, as such, of any woman who* or whose administrator, is entitled to recover same.”
“RCP No. 10 Married women — husband and wife. A married woman may sue or be sued without joining her husband. If both are sued, she may defend in her own right; and if either fails to defend, the other may defend for both. [Report 1943].”
The above statutes are the provisions in Iowa under which married women were properly emancipated from the rules of the common law as to coverture. These provisions are commonly known as Married Women’s Acts and they have, in various forms, become a part of the statutory law of all common-law states during the past century. My reason for quoting them in this dissent is to show there are no legislative enactments in Iowa which grant to plaintiff a basis for cause of action. They do give her a right to sue, if she has a cause of action. Patelski v. Snyder,
In Cravens v. Louisville & N. R. Co., supra, it was held as quoted from 23 A. L. R.2d, page 1396: “That while the wife may recover for the loss of consortium of her husband due to an intentional wrong or a direct attack on the marriage relation, yet in the absence of a statute conferring such right, there can be no recovery for the loss of consortium due merely to a negligent injury, the court stating that the Married Women’s Act, giving the wife a right to hold separate property and to sue alone, conferred no new rig’ht of action, but only the power to sue for the protection of rights which she already had.”
We quote from 23 A. L. R.2d, page 1396, which states the holding in a Mississippi case as follows: “It was held in Nash v. Mobile & O. R. Co. (1928)
In Howard v. Verdigris Valley Electric Co-op., supra, the court said on this subject at page 508 of 201 Okla., page 787 of 207 P.2d: “ * * * whatever additional rights may have been extended to women generally under the so-called emancipation statutes, or Married Women’s Act, such statutes do not confer a new right upon the wife which permits recovery for loss allegedly resulting from negligent injuries to her husband, since no new cause of action was created thereby.”
II. Negligence cases are often confused with eases of intentional, willful or malicious wrong to the husband, which cases are actionable by the wife for loss of consortium. Many of the cases cited and much of the argument of attorneys for appellant pertain to such intentional injury to the husband rather than to negligence. This is true to a certain extent in the majority opinion. Where there has been such wrongful act as against the husband there is no question about the wife having a cause of action against the wrongdoer for the loss of consortium. This
There is clear reason for the distinction. This type of case is not one where the husband can sue for his injuries, for himself and family, because he is a party to the transaction. In an alienation of 'affections case he is one of the tort-feasors. The same is true with reference to illegal sale of liquor or opium. In these cases the only plaintiff is the wife and there has been no previous suit by the husband for damages as in case of negligence. The suit is by the wife and the only basis for recovery is on behalf of the wife alone.
III. The overwhelming weight of authority in the nation is contrary to the majority opinion. Most cases are based on the principle that recovery by plaintiff would constitute double recovery for the same act of negligence. Stout v. Kansas City Terminal Ry. Co.,
In 27 Am. Jur., Husband and Wife, sections 513 and 514, page 114, we find the following analysis of the situation: “If the deprivation is due to causes for which the husband may recover, his recovery is deemed to be partly for the wife’s benefit, and the remedy is clearly to the husband, and not to the wife. * * * Whatever right a wife may have, by virtue of statutes removing her common-law disabilities to recover for loss of consortium of her husbatid as a result of injuries inflicted by a third person, does not extend to loss of consortium caused by a mere negligent injury inflicted upon the husband. At least, in the absence of any statute expressly conferring it, a wife, even though able to sue and be sued as a feme sole, has no right or cause of action, as a general rule, for loss of consortium due to injuries negligently inflicted on her husband. She has no such cause of action even under a statute preserving to her all rights of action growing out of violation of her personal rights. Her loss of consortium resulting from negligence is too remote and indirect to permit her to recover therefor, and hence, it is distinguishable from loss of consortium resulting directly from a wrongful act, as where her husband is wrongfully enticed, seduced, or forced away from her. Furthermore, damages to which the husband is entitled, in a suit for his injuries sustained through another’s negligence, are supposed to be full compensation for his injuries, in which compensation his wife has a benefit, with the consequence that if the wife is permitted a separate recovery for her loss of consortium resulting from such injuries, there is, in effect, a double recovery for the same matter.”
The American Law Institute considered the question and as a part of its Restatement of the Law reached the following con
In Bernhardt v. Perry, supra, the court, in upholding defendant’s demurrer, pointed out that plaintiff misconceived the fundamental difference between the rights of a wife growing out of personal injury to her husband from negligence and those growing out of alienation of affections stated at pages 626, 629 of 276 Mo., pages 465, 466 of 208 S.W. as follows: “In the former case the injury is physical, or grows out of a physical injury done to the husband, and he, if death does not ensue, is entitled to a recovery of damages resulting therefrom, which, in legal contemplation, is supposed not only to make him whole, but enables him to support his wife and children and to discharge all of his marital and parental duties due them in the same degree that the law imposed those duties upon him previous to the injury, leaving no right of theirs, if any, violated, which has not been fully compensated.” The court also said: “* * * to recover from the defendant in this action, then she would recover from the same wrongdoer the damages she had sustained for the same injuries her husband had recovered for, and out of which, as before stated, he is legally bound to support, maintain and care for her. This would be double compensation, which in my opin
IV. One important contention in the majority opinion is that the husband has a right to sue a person who is negligent and has caused damage to his wife for the loss of his consortium. Therefore, the wife should have the same right. There is an element of doubt involved in this contention. There are no specific Iowa decisions establishing a cause of action for loss of consortium in favor of the husband. There are a few'cases, as cited by counsel for appellant, and referred to in majority opinion, where we have incidentally leaned toward this principle. The cases in other states are not uniform in sustaining the right. In many cases it has been denied to the husband. Bolger v. Boston Elevated Ry. Co.,
As an analysis of this phase of the situation we quote from 23 A. L. R.2d, page 1395, as follows: “Pointing out that the reasoning as to remoteness of claim may not be wholly in harmony with allowing an action for loss of consortium to the husband, while denying it to the wife, the appellate court in Stout
In holding that no damages could be awarded to the husband for loss of consortium of his wife the court in Bolger v. Boston Elevated Ry. Co., supra, said at page 421 of 205 Mass., page 389 of 91 N.E.: “No valid distinction can be drawn between the husband’s right to recover for the loss of the wife’s consortium, in cases growing' out of the negligence of a third party, and the wife’s right to recover for loss of the husband’s consortium in like cases. Neither can it make any difference that in the case of the wife the loss of. consortium is or may be the sole ground of recovery and in the case of the husband it is or may be one of several grounds of recovery.”
In 23 A. L. R.2d, page 1381, we find the following statement: “After reviewing the changes in the status of married women due to modern statutes, the court in Marri v. Stamford Street R. Co. (1911)
V. As far as precedent is concerned the majority opinion rests its case largely on the rather lengthy opinion written by Judge Clark in Hitaffer v. Argonne Co., 87 App. D. C. 57,
In this late case of Nickel v. Hardware Mutual Casualty Co., supra, we find a careful analysis of the reasoning for denial of cause of action in cases such as the one at bar: “Various reasons have been given by the courts for their rejection of claims of this nature. To us the most appealing is that to permit it. would result in double recovery to the husband and' wife for the same injury. In the husband’s action he is entitled to recover full compensation for all injuries he sustained, including that for being incapacitated, for his inability to care for, protect, and associate with his wife. If she were authorized to recover from the same wrongdoer the damages she has sustained for the same injuries which her husband may recover for and out of which recovery he is presumed to support and care for her, their recovery would be double, which in our opinion the legislature never intended. The settlement of a husband’s claim for per
In the Ninth Circuit Federal case of Filice v. United States, supra, the court said at pages 516, 517 of 217 F.2d: “We are asked to hold that today, in this more enlightened age, .the law of California on this matter is the same as the law in the District of Columbia as declared in the Hitaffer case * * *. In the face of the fact that the law elsewhere is so nearly unanimous against a recovery such as that here sought, we find ourselves unable to say and we are unwilling to hold that the law of California at present recognizes the right of a wife to bring such an action.”
The rather extensive quotations are for the purpose of showing the reasoning in the decisions constituting the great weight of authority, which is contrary to the majority opinion. Against this great weight of authority we are opening a new door for endless, and I believe unsound, litigation.
I would affirm.