177 Ind. 692 | Ind. | 1912
Appellant filed her complaint against appellees, for damages growing out of personal injuries to her husband, Albert Brown. The lower court sustained a several demurrer, for want of facts, to each paragraph of complaint, and appellant declined to plead further, whereupon judgment was rendered for appellees.
The errors relied on here are predicated on the action of the circuit court in sustaining the several demurrer to each of the third, fourth and fifth paragraphs of complaint.
The third paragraph alleges that appellant’s husband was in the employ of appellees, and, while so engaged, sustained
The fourth paragraph is similar to the third, with the addition that appellant therein alleges that by reason of the negligent injury to her husband she has been deprived of the companionship, comfort and society of her husband, for which she demands damages.
The fifth paragraph is similar to the third in regard to the allegations of her husband’s injury, and bases the right to recover solely on appellant’s loss of the companionship, comfort, society and protection of her husband.
May the wife recover from a third party for the loss of the society, companionship and affection—consortium—of her husband, caused by the negligence of such party?
The question here involved rarely has been presented to courts of appeal, and, so far as we are able to discover, when presented, a recovery has been denied.
In Goldman v. Cohen (1900), 63 N. Y. Supp. 459, 30 Misc. Rep. 336, it was said: “The defendant demurs to the complaint, which seeks recovery by a wife for the loss she sustained as a wife by the injury to her husband from the negligence of the defendant in the management of a horse. Her loss is that which usually occurs to a wife from the illness of a husband, in the deprivation of support and consortium, and the need of her personal care for him during his sickness. No case is cited where the wife recovered upon such a claim, and the absence of precedent, where such demands might have been numerous, if sustained by the law, goes far to the belief that such negligence has never yet been embraced within the circle of causes of action recognized by law, beyond the right given to the injured one, and its survival to the consort and next of kin in the event of his death. It is true that this century just closing has seen, with our own state foremost in the advance, the adoption by unwritten and statutory law of juster and wider views of the wife’s existence as a human being, by the emancipation of her person from ‘the moderate chastisement’ of the husband, and the protection of her rights of property; but her interest in the husband’s life and companionship is not a right of property, or derived from a contract of bargain and sale. That interest lies in a region into which the law does not enter except when necessity compels. It does recognize invasion by wilful misconduct. It inflicts heavy damages upon the entieer or seducer. But this is for punishment and atonement rather than compensation. It comes within the range of concurrent and supplementary adjuncts to the crim
In 21 Cyc 1530, it is said: “For an injury done to the husband the wife cannot join with him in an action for damages ; and no action accrues to the wife for the loss sustained by her, such as the loss of his wages; nor can she recover for nursing him, when injured by a third person’s negligence.”
In the recent case of Feneff v. New York, etc., R. Co. (1909), 203 Mass. 278, 89 N. E. 436, 24 L. R. A. (N. S.) 1024, 133 Am. St. 291, the question here under consideration was directly involved, and the right of recovery was denied. In the course of the opinion it is said: “The right to the consortium of the other spouse seems to belong to husband and wife alike, and to rest upon the same reasons in favor of each. Since the removal of the wife’s disability to sue, this is now settled in most courts by a great weight of authority. Nolin v. Pearson [1906], 191 Mass. 283 [77 N. E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. 605, 6 Ann. Cas. 658], and cases cited. It is now generally held, in accordance with
Judgment affirmed.
Note.—Reported in 98 N. E. 631 and annotated in 40 D. R. A. (N. S.) 236. See, also, under (2) 21 Cyc. 1618; (3) 21 Cyc. 1530. As to whether one may or may not recover for injuries happening to a relative through the wrong or negligence of another, see 48 Am. Dec. 019. As to the right of a wife, in the absence of a statute, to maintain an action for an injury to or the loss of consortium, see Ann. Cas. 1913A 989.