184 Mich. 304 | Mich. | 1915
(after stating the facts). In the brief for appellant argument is addressed to the alleged positive character of the evidence establishing the negligence of plaintiff’s wife, the uncertainty of the evidence to establish the injuries claimed to have been received by her, the rulings of the court and the charge upon the subject of plaintiff’s loss of consortium, the alleged excessive recovery, and the verdict of the jury which is, it is claimed, opposed to the weight of evidence. These are the subjects of principal discussion and will be considered.
“The right of consortium is a right growing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together.” Feneff v. Railroad, 203 Mass. 278 (89 N. E. 436).
“Per quod consortium, amisit” (by which he has lost the companionship) was the phrase used when at the common law plaintiff declared for any bodily injury done to his wife by a third person. 3 Blackstone Commentaries, p. 140. Appellant says:
“We insist that for loss or diminution of his wife’s ‘marriage fellowship,’ of her ‘company and co-operation,’ that even if her society and companionship is less satisfactory than formerly, that in his association and intercourse with her he finds less comfort, pleasure, or happiness, all of which are matters of sentiment affecting the mind and heart and not the pocket, he cannot recover damages therefor. In this case no evil motive or wilful misconduct on the part of the defendant is claimed. * * * This is unlike an action on the case for seduction, or alienation of the wife’s affections, which stand upon peculiar reasons.”
At common law when a married woman was injured in her person she was joined with her husband in an action for the injury, and in such action nothing could be recovered for loss of her services or for the expenses to which the husband had been put in taking care of and curing her. There was no allowance for her loss of ability to earn wages, render services and be helpful to others, because these elements of damage, so far as recoverable at all, belonged to the husband. For such loss of services and such expenses the husband alone could sue. ' 1 Chitty, PL p. 84. The common law gave the husband the right to the labor, services, and earnings of his wife.
If a husband may recover for loss of consortium resulting from physical injury to the wife occasioned by negligent conduct of the defendant, the wife may recover for loss of consortium of the husband under similar conditions. The right affected, if it may be properly called a right, is mutual. No reasoning will now support a recovery by one which will deny it to the other spouse.
“No case has been brought to our attention, and after an extended examination we have found none,
If plaintiff has in fact, on account of his wife’s injury, lost a service • which she habitually rendered, then, as service, and according to the pecuniary value of it, he ought to be permitted to recover. Recovery should be according to the fact. For loss of consortium, of the undefined and indefinable influence of either spouse in the family relation, and the pleasure of the relationship, neither may recover. The Massachusetts decision in Kelley v. Railroad Co., 168 Mass. 308 (46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397), relied upon in Gregory v. Motor Car Co., supra, and often cited in text-books and opinions of judges has been distinctly overruled as to the point now being considered. Feneff v. Railroad, supra; Bolger v. Railway Co., 205 Mass. 420 (91 N. E. 389). While our own former decisions do not distinctly rule the point, still Bowdle v. Railway Co., 103 Mich. 272 (61 N. W. 529, 50 Am. St. Rep. 366), is plainly not opposed to it. Nor do I think Gregory v. Motor Car Co. wrongly decided; no specific claim having been made that the damages were excessive, and the objection being that the husband could not recover at all for loss of services of his wife. As to the elements which may be considered by a jury in fixing the pecuniary loss of the husband, the charge delivered in that case was in some respects opposed to the conclusion I have reached (although to that portion of the charge no objection appears to have been made), and some of
The testimony referred to should not have been received, the court erred in his instructions upon the subject of loss of consortium, and, more doubtful, but nevertheless tangible, plaintiff did not fairly sustain the burden of proving that the probable cause of the wife’s injuries, relieved by a surgical operation at the cost of the husband, was the injury for which defendant was held responsible.
The judgment is reversed and a new trial granted.