*1 as the assessment date for property. i April personal in market is based the factor of fluctuation argument upon values, dates and it is that the different assessment urged results in a lack of uni- two classes of property answered, The contention is formity fortiori, equality. we have by what said herein with reference to constitu- of Senate Bill In been event has tionality any long 368. settled that are not violated uniformity requirements statutes for the valuation of real estate on one providing date and the valuation of on another. personal property (Thomas Gay, U.S. L.ed. 740; Worton Paducah, City one Ky. S.W. 617.) Whether class of is to be assessed a different than property day class, is another and whether 1 or some January April other date is for valuation kind appropriate particular discretion, are matters of property, legislative or selections are designations to have presumed reasons facts special known to the General Assembly.
We conclude that no conflict has been shown amendments and that questioned, none has been shown be unconstitutional or void. The of the circuit judgment court is correct and it is hereby affirmed.
Judgment affirmed. (Nos. 35466, Cons. Irving al., et vs. Appellants, al., Dini et Gino Naiditch
Appellees. Opinion Sept. 30, Rehearing denied Nov. 30, filed 1960. *2 Klingbiel House, JJ., dissenting.
Schaefer, C.J., *3 Dooley, A. for appellants. Chicago, James Brody, Abraham, Robert Arthur and L. both of for Chicago, appellees. Bristow delivered the
Mr. of the court: opinion Justice Dini This a combined Elizabeth from by appeal plaintiff her action loss summary for of con- judgment dismissing sortium, and Dini and Lillian M. Gino by plaintiff plaintiff Duller, Duller, as administratrix of the estate of Edward J. from a the verdicts entered in judgment notwithstanding firemen, their actions for the and death of injury city alleg- caused defendants’ and edly by viola- negligence statutory tions the maintenance of their The premises. superior of Cook set aside court verdicts County jury awarding sustained by injuries for personal of $235,000 damages death of Dini, $20,000 wrongful for the fireman Gino Duller, that there on the ground fire Edward captain basis for liability. no legal on this direct ap- the cause
Our to review jurisdiction motion, must now con- we on been determined having peal First, this appeal: issues by sider two major presented firemen city are liable whether landowners operators in violation their for maintenance of negligent premises ordinances; whether a wife certain fire and secondly, due to for loss of negli- entitled consortium damages her husband. injury gent the controverted facts discernible from operative Albert and Rae are that since
testimony defendants Naiditch have been the owners brick build- four-story ing erected at the Milwaukee Ave- intersection of nue and North Each Green Street floor con- Chicago. 6,000 tained about feet Most of the square space. ground floor was Naiditch for store and restau- occupied by selling fixtures; rant the basement was used storage boiler; second, and for business and the third and fourth floors of the were as the building Green operated Mill Hotel. rooms, were There most of which were floors, on each single, of the three hotel and five six rooms each had floor These kitchens. premises by some occupied persons. Access the three hotel floors from the vestibule of the Green Street entrance was means of a wooden stairway, six feet approximately wide, supported by that were nailed stringers to the walls rather than recessed.
Adjacent to the stairway on the second floor landing anwas office maintained defendant Kenneth Oda and *4 Sato, who, Thomas as lessees of Naiditch since 1951, oper- the ated hotel as at the time the partners fire. Next to office, that and some or 20 feet the from stairwell was which, a room in storage the according uncontroverted or a four and benzene was testimony, including paint kept, five aluminum can of benzene at the time gallon There fire. was also that there numerous testimony office, cans, in the brushes and paint despite pro- rags vision the lease that no benzene or other enu- naphtha, merated flammable were to be on the products premises kept without the written of Naiditch. permission
The record the condition the respecting premises to and at the time of fire is prior the extensive. Apparently there was no with the lease that the compliance provision lessee would an main- spend annually average $1,500 tenance and Naiditch improvement of the premises give monthly itemizations such had Naiditch expenditures. write to attorney Oda and Sato that demanding repairs made, lawsuit, and later filed a which culminated with $1,500 escrow Neither nor put Naiditch repairs. Oda, however, admitted records whatsoever having any the maintenance the respecting While the lease property. month, Naiditch to the hotel he required once inspect admitted on trial that he had not such in- made regular and that he had not seen the hotel some six weeks spections, fire, to the been prior on vacation. having It also the from appears testimony residents hotel there were that drums oil converted into open garbage corridors, cans hotel which were two emptied only week, three times and other waste was paper piled cans, in the corridors beside that the walls were cracked and rain had leaked roof through into fourth floor Sato, and that hallway, janitor, Jimmy “always drunk,” but retained It despite also complaints. appears fire, from record that to the defendants’ attention prior had been nine called to violations of separate city ordi- nances within the there is building, although some contro- versy of a former who findings building inspector testified for defendant.
With reference condition of the on the premises *5 that two fire, testified the residents one of night full and of the hotel were the first floor cans on garbage foot high about and that was piled overflowing, paper home about resident, returned the who floor. Another in his section P.M., cans that three or four garbage said the full, around piled the fourth were with paper floor to fire- According so that had to around.” cans he “cross in the blaze, men the could see rubbish who they fought the the floor of hotel reached second corridor when they Moreover, as well as trash litter on the stairs. and building, doors, the there were fire to the testimony no according the fire fire the marshal who was on deputy during premises fire, and made a minute after the and that of inspection the chief the fire marshal and of division building inspector, who was the directed also inside the fire and during building the of the blaze. Nor were there fire ex- fighting any hotel, tinguishers of kind in to the any the according orig- inal admission of Naiditch the of residents and testimony who had lived there for three or four and that of years, the detective police who examined the the fire. after premises occurrence,
With reference to the that at appears about A.M. on after the fire had April 12:50 minutes, been apparently for at least burning thirty-five officer on police some duty blocks was attracted away scene, flames. He drove to the where he found the Green Mill Hotel and he radioed a burning, Within report. minutes fire arrived, but the equipment flames were then the hotel shooting roof and through people hanging out of the windows and yelling screaming. chief, to fire
According battalion was fire located in the at entrance, stairway Green Street blocking exit. He therefore ordered an the in- engine company up side of the stairway cool fire off in order to effect rescue Duller, Fire operations. Smith, and captain firemen Dini, Collins and who shoulder, was a hose on his carrying entered the entrance, Green building Street through and where landing, second floor up the stairs
proceeded was sent could hear the roar of the Collins fire above. they hose, for a and Dini left on the landing smaller was Duller the smaller hose into a shut-off while pipe, couple floor could and Smith started on to the third where they up moment, fire see the above them. At with- raging entire and fell into out any stairway warning, collapsed at the floor first level. Duller buried heap Captain debris, in the was not until recovered burning body *6 Smith, who testified some- following day. escaped, himhit on the head and him the stairs drove thing through the area Dini in a of onto below. was burning pinned pile wood, himself but extricated with and made difficulty, great his out in which flames he way extinguished by jumping into a of water at the puddle curbing.
Dini was so burned that his was in severely recovery doubt for two months. He suffered third burns degree face, neck, chest, arms, his left and knee. Both leg scalp, off, outer ears almost burned as were his completely nose, and He also suffered eyelids. severe burns inside lips throat, his mouth and which not made only diffi- breathing cult, and and but swallowing interfered eating impossible, of with administration anesthesia. When the burned off, areas, skin sloughed raw leaving was necessary, infection, order to some prevent make skin thirteen grafts areas his from other of That body. of his phase hospitaliza- tion treatment lasted until and August 13, 1955; from October 13, 1955, to Dini February 25, 1959, underwent some additional fifty-nine for skin operations and grafting ears, for the reconstruction of and eyelids, and the removal scar tissue. His are injuries insofar as loss of permanent motion concerned, flexion in the and affected members and inso- affect they Moreover, far his appearance. since March 1956, except periods Dini has hospitalization, worked three hours a only approximately day the Fire Preven- loss resulting with a typewriter, Bureau operating tion of income. at the time Duller years age
Captain some 21 years, been married in the fire. He had death son, widow, 16-year- and a an 18-year-old left surviving old daughter. facts, the the foregoing the basis of substantially
On Duller, as Dini and returned the verdicts for jury plaintiffs noted, court entered judg- hereinbefore superior the verdict on ment for defendants notwithstanding fire since the that there was no basis of liability, ground not enacted for ordinances violated defendants were Moreover, entered benefit of firemen. the court a summary Elizabeth Dini on the judgment dismissing complaint that a con- ground wife has no cause of action for loss of sortium from the her husband. injury resulting negligent cause, In claims this we shall consider first the reviewing Duller, Gino Dini and administratrix Lillian in- volve the issue of the landowners’ to firemen for liability maintenance of negligent We believe that premises. this question, last considered this court should properly re-examined its entirety.
It must be at the outset that *7 recognized the English law, common derived, from our law is was part of a parcel social system which the landowners were backbone, and that it was inevitable that in such a legal climate supreme would be attached importance to propri- etary interests. Torts, (Bohlen, Years Fifty Harv. L. 50 et Rev. 725, It was the seq.) feudal that the conception landowner was within his own sovereign boundaries that gave birth to the rule that only duty landowner owed a licensee was not to or wilfully wantonly him. injure (Bohlen, Torts, Studies in was, the Law of It 156-206.) then, hardly "giant step” to the label of give “licensee” to a member who, of the fire department an emergency, enters in the premises of discharge and to duty,
414 hold, did, owner or cases that the occupant early to refrain from owed the fireman no than greater duty 641, A.L.R. infliction of or intentional wilful injury. 13 Leonard, 642; Gibson Ill. 182. A.L.R. v. 584, 586; 141 143 However, of land subject of the law on history away owners and “licensees” shows a whittle tendency a rule As which no longer conforms to public opinion. out, Bohlen in which a “Like so cases barbaric points many retained, formula has has been modified been its content so as to much of its interpretation inhumanity.” remove Thus, to avoid extending Harv. L. Rev. (50 725, 735.) what has been deemed a “harsh rule” v. Minne (Hamilton Desk Co. Minn. 80 apolis 3, N.W. Mfg. (1899) 693; 78 Mulcrone v. Minn. 212 N.W.2d Wagner (1942), 478, 4 courts 97), have held firemen entitled to warned of “hidden or “unusual hazards” known dangers” to the landowner or A.L.R.2d occupant. 525, 529; 55 Shypulski v. Products Co. Paper (1951), Waldorf 232 Minn. N.W.2d Jenkins St. 394, 549; Corp. 45 37th el N.Y. N.E.2d Schwab (1940) 397, v. Rub 284 31 N.Y. 286 N.E.2d Tire Corp. (1941), 525, 234; Mason 37 & Rubber Co. v. Ohio St. Lansinger (1923), 377, 140 Torts, N.E. 770; Restatement of § 345.
Other courts have avoided the rule harsh from finding slight variations of circumstances that injured fireman was an “invitee” (Clinkscales v. Mundkoski (1938), 183 12, Okla. P.2d 562); “business visitor” to whom the landowner owed a duty reasonable care to keep safe. Zuercher v. premises Northern Co. Jobbing (1943), Minn. 66 N.W.2d forthrightly courts, Still other scholars, as well as have legal “licensee,” ted label of rej with its concomitant ec set of and duties for rights Meiers firemen. v. Fred Koch Brewery (1920), N.Y. N.E. 491; Shypulski Products Co. Paper Minn. Waldorf N.W.2d Smith v. Twin State Gas & Elec.
415 L. 60; Mich. Atl. N.H. 35 144 83 Prosser, Torts, (1933); Rev. 1158; Harper, 96 U. Rev. et seq.; 26 Minn DePaul L. L. Rev. 6 573; Pa. L. Rev. 142, 147. recover a fireman to
In the Meiers case the court allowed he a while injuries fight- caused when into hole stepped not court did a fire on While the defendant’s ing premises. fireman, define the a it refused to categorize status of clearly him as a In circumscribed opinion, “licensee.” a closely busi- court allowed “one licensee recovery entering to not ness as of as a means over a property way prepared right enter, of access for those injured by entitled to who is in a of the owner to that way negligence failing keep in- as it reasonably safe condition for those using tended to be used.” court, Minnesota Paper Shypulski Waldorf
Products Co. Minn. that since firemen 394, observed status, have a it follows that the owed unique duties them may and that same properly unique; approach was followed our Illinois Ryan Court Appellate Chicago and Northwestern Ill. Railway App. 65, officers, After the status of fire- reviewing public including men, who come on the land exercise of legal privi- the Illinois lege, court allowed for the death of damages officer police while on defendant’s caused way, trains, negligent operation defendant’s ground that the owner was to use care reasonable obligated injure the police officer.
In issue, reviewing law on this we note further that this fiction legal that firemen are licensees to whom duty no of reasonable care is owed is without any founda- logical Torts, Prosser, tion. (Harper, Minn. L. Rev. § Mich. L. Rev. It 1157.) illogical say highly a fireman who enters the premises quite independently either invitation or consent cannot be an invitee because there has invitation, been no can but be a licensee even *9 is lack of logic there been has no
though permission. not have that the courts even more when we realize patent em- “licensee” to other public the term types applied in the per- to come on another’s premises ployees required duties, reason- duty of their and to whom formance care is If benefit the landowner is decisive able owed. to factor, it entitled is difficult to a fireman why perceive care, the landowner derives greater to or how duty officials, such as post- benefit from the visit of other public men, than from water meter readers and revenue inspectors, his the fireman who the destruction of comes to prevent L. Mich. Rev. 1161. property. 35 it is our that since the common- Consequently, opinion law rule firemen as licensees is but an labelling illogical anachronism, order, in a different social originating vastly refinements, it should not be pock-marked judicial in the name That perpetuated of “stare decisis.” doctrine Path,” does not confine our courts nor to “Calf rule any of ad- currently numerical enjoying superiority herents. “Stare decisis” for to be the excuse ought not decision where reason is Mulcrone v. lacking. (Dissent, Wagner As Minn. 478, 97, 100.) N.W.2d stated Lord in & Co. aptly Goddard Best v. Samuel Fox cases, (1952) is free neither Appeal law 731, “English anomalies, of some this is nor of but everything illogical, no reason for them.” extending
Inasmuch as firemen confer landowners obviously economic and other benefits which are a basis recognized the common-law of reasonable care imposing duty (Re- statement, Torts, Torts, Prosser, 26 343a; Harper, § § Minn. L. Rev. Mich. L. Rev. we 1161), case, would with court the Meiers its agree and with adherents, that an action should lie a landowner against failure exercise reasonable care the maintenance of the injury or death of a fireman property resulting fire at a where place on the premises, fighting rightfully to be. he reasonably might expected This does not run counter to any impos- interpretation As hereinbefore in this body jurisdiction. ing precedent once, noted, has this court considered only problem Leonard, A that was in Gibson v. Ill. care- case, however, ful of that indicates that the court reading firemen, did not status of but was common-law analyze concerned with a volunteer member of whether primarily a fire insurance a defective elevator patrol, injured by in the basement of a was entitled counterweight building, of a ordinance. protection Never- particular safety theless, law, for the clarification insofar as any *10 contained therein language be inconsistent with our might case, of the interpretation common in this it law must be overruled, deemed to be with along any Court Appellate cases the archaic licensee following Velluz v. East concept. St. Louis & Light Power Co. Ill. App. 565; Thrift Vandalia Railroad Co. Ill. App. 414.
In case, the instant from the evidence noted previously that defendants failed to fire doors or fire provide extin- guishers, permitted the accumulation of trash and litter in corridors, the and had benzene in stored close proximity the inadequately constructed wooden where the stairway located, fire was the jury could have found that defendants failed to keep in a premises safe reasonably condition and that the fire, hazard of and loss it, of life fighting Hence, reasonably foreseeable. since there was basis legal of case, in liability this it was error to set aside the jury verdict and enter judgment the verdict. notwithstanding
Plaintiffs have as alleged, second basis of de- liability, fendants’ violation of certain safety ordinances. We have recognized rule that the violation of a statute or ordi- nance for the designed of protection human life or property is prima evidence of negligence, and that the party facie action, he comes has a provided cause
injured thereby statute, or ordinance within of the particular purview connection with and the has a direct and injury proximate v. Yellow Cab Co. Ill.2d Ney 78-79; violation. & Co. Ill. Daigger (1930). Bandosz App. 494 In whether the violation of ordi- determining safety nances an fireman of action gives injured against in we find the case law. guilty no party, unanimity the crucial each case is whether question Apparently was intended that a fireman within the should come scope or afforded statute ordinance. protection A.L.R.
Plaintiffs have called our attention defendants’ viola- tion of certain code provisions Chicago municipal Hotel, for structures such as the Green Mill en- requiring, ; ; closed stairwells fire (sec. doors fire 3.2) (63 3.6) 62— — ; extinguishers (64 4.1) specifying oil rags — waste shall be waste kept during day cans approved covers, heavy with galvanized iron and shall self-closing be removed at and that night, rubbish shall allowed to accumulate in any These part any building (90 25).— that, ordinances further “It shall be provide unlawful continue the use of or structure occupy any or place does not with these comply this code which provisions are intended to a disastrous prevent loss fire of life case fire, alterations, until the changes, or re- repairs quirements found necessary to place a safe building *11 condition have been made.” (Sec. 3.) (Italics ours.) 90— Defendants, however, that firemen argue are not within ordinances, that, of these purview therefore, and plain- tiffs cannot predicate thereon. In liability of that support contention, defendants cite the case, aforementioned Gibson Ill. 182. Recovery was denied in that case on the 143 that the ordinance ground on which the fireman based claim that specified it was to insure designed against injury a specified employees hence, building; class—
419 not fireman within that reasoned that volunteer was court for whose the ordinance passed. class protection case of Parker Massachusetts court distinguished leading 116, cited Barnard, Mass. also (1882) plaintiffs herein, that injured police on the recovery by ground in the landowners’ viola man that case was predicated shafts, elevator which was tion of a statute safety respecting here, terms, “But in in its stated at and page general 195: section of the ordinances instead of Chicago, gen such was in language, eral used the statute considered in Barnard, shows, Parker v. found in is ex language terms, that the ordinance was intended for the press only factories, and benefit in protection employees workshops, other and or structures where is em places machinery (Italics ployed.” ours.)
In case, of that in statement the Gibson light precise it, effect, in at differentiating from the case bar where safety ordinance is in its and has general terms the avowed fire, loss of purpose life case preventing regardless be, of whose life it we can find the may Gibson case hardly to be determinative for the denial this action. precedent theOn the entire contrary, case is that implication herein, the ordinances terms, being general might prop- include erly firemen within their protection.
Such moreover, an would be interpretation, consistent law, with the case both in Illinois and in other States. & (Bandosz Daigger Ill. A.L.R. App. Thus, 592, cases in Drake cited.) v. Fenton Pa. Atl. 14, where the injured fireman was allowed to recover from a landowner who violated statute elevator requiring closed, shafts to be kept Pennsylvania court stated at “It Act of page [the 1903] is restricted to a terms, class but specific its general it is a reasonable construction to that it hold was passed the benefit of all persons on the lawfully premises.” Similarly, v. Hearst Maloney Hotels Corp. (1937), *12 420 at 106, 297, the court stated page N.E.2d 296, 8
N.Y.
“* * *
ordi-
a direct violation of
have in this case
we
as well
benefit
firemen
were
for the
nances which
enacted
hotels;
into the
at least firemen
in the
entering
as guests
that
law in this
to assume
par-
had
premises
v. Pal-
also
(See
Taylor
had been
with.”
ticular
complied
1,
Ra-
S.E.2d
metto
Co.
S.C.
28
538;
Theatre
(1943), 204
864,
v. Morris
240,
cine
201 N.Y.
N.E.
(1911),
94
Co.
In accordance with this our Court approach Appellate in Bandosz & Co. allowed Daigger in a recovery wrong- ful death action where a fireman was killed explosion of inflammable stored in a basement in liquid violation of an ordinance and statute. statute sub-^ provided, stance, that it shall be unlawful to store benzene or any combustibles such manner or under such circumstances will jeopardize and the property, ordinances life prohibited than storage more of benzol gallons ether in any within a building certain area. The court rejected determinative, the Gibson case as and relied instead on Parker Barnard, on the that “the ground ordinance and statute terms, general their and not limited in their operation class any particular Conse- persons.” the court that quently held firemen were entitled to the laws, of such protection recognized claim based on their violation.
There is a between the similarity italicized lan- general case, and the in the Bandosz involved the statute guage herein, “to dis- are intended prevent ordinances This analogy case fire.” fire or loss life astrous case defendants’ to distinguish not marred by attempt *13 the the that ground such claims on and the others allowing or explosives those related combustible statutes cases deal only herein materials, ordinances safety whereas however, cases, The maintenance of premises. with the is criterion The they impose no such refinement. warrant statutes, of matter but not the subject safety based upon i.e., rather the intended whether law upon coverage, its or restricted its terms to general application, class. This is evident from the in both particular language the cases and those In no liability. recognizing denying case was the fireman’s action because the rejected merely statute on which he based his claim deal did not with materials, combustibles extra-hazardous as defendants suggest. must, therefore,
We as an additional recognize, basis of defendants’ liability, alleged violations the particular owners, fire ordinances and that safety defendants Nai- ditch, can avoid such on the that the liability ground were leased. premises (City Chicago v. Sheridan and ; Ill. Kuh, 18 2d App. (1958) Landgraf Ill. 484.) have noted We that there already was some evidence from which the could jury find that reasonably defendants fact ordinances, guilty these violating and that such violations caused the proximately injuries of plaintiff Dini and the death Therefore, Duller. Captain it was reversible error for the trial court to enter not- judgment withstanding the verdict with to these claims. respect
In next the issue of considering whether Eliza- plaintiff beth Dini assert may an action loss of consortium due to the negligent husband, of her injury we note that this has been question considered in this jurisdiction in only case, Court single Appellate decided in (Patelski v. court deemed the Federal Ill. 24,) Snyder, App. of a Illinois law the absence Supreme declarative News Co. it. v. Union (Seymour Court decision overruling case, In the Patelski F.2d 169.) (7th cir.) on the denied the action ground Court our Appellate the act of at common law prior neither recognized removing par. 1,) Rev. Stat. (Ill. 1874, chap. women, con- nor of married specifically disabilities civil that act. ferred by
Therefore, this is not overladen inasmuch as question first im- and is one of Illinois essentially with precedents court, we shall review origin for this pression rule, its courts examine common-law application advanced for its reten- and the reasons other jurisdictions rejection. tion or in the Patelski case common-law rule adhered to an for loss of consortium due to the wife action
denying *14 at a of her husband was the injury promulgated negligent in all the wife’s when history property, personal period and chattels of became her hus every money description contract, She could neither nor bring band’s upon marriage. one, action kind. Husband and wife any were any Iowa 272, that one.” v. Schmit (Acuff (1956), “he was 248 480, v. 484; Montgomery Stephan (1960), N.W.2d 78 Blackstone’s Com 230; Mich. 101 N.W.2d 1 227, 33, 359 the husband was entitled to his mentaries Since 433-436.) home, services as he was to those of any wife’s servant his if he lost those services employ, through another, acts had person damages. respond Holsworth, a (8 Law ed. History (2d 1937), English He had a of action for to her 427, 430.) right injury on the that she theory servant. How grounded ever, wife, should the husband a injured, being legal Blackstone, Commentaries, nonentity (1 could 442,) bring no action. A servant could sue hardly loss of serv Blackstone, Commentaries, ices of the master. (3 142, 143.)
423 case, N.W.2d 101 in the Montgomery vividly As explained the doctrine “This, then, the soil which at page 230: husband, her root; of wife subservience abject took nonexistence, combination her degraded position legal vessel, might whose obedience drudge chattel and household be enforced chastisement.” by personal social, in the eco the obvious changes
Notwithstanding
the ensuing
nomic and
status of married women during
legal
centuries,
these
the husband
common-law rules allowing
action
loss of
due to
consortium
negligent
wife,
action,
of his
but
wife
injury
reciprocal
denying
adhered
until
uniformly
courts
(Feneff
New York
Central & H.R.R. Co.
Mass.
(1909), 203
N.E.
Brown v. Kistleman
Ind.
278,
436;
(1912),
89
177
N.E.
Stout v. Kansas
Terminal Rail
City
692,
631;
98
Co.
Mo.
way
S.W.
(1913),
App. 113,
1019;
172
157
612,
Bernhardt v. Perry (1918),
Mo.
S.W. 462;
208
276
101,
Smith v. Nicholas
Co.
Bldg.
(1915),
Ohio St.
112
93
204;
N.E.
Emerson v. Taylor (1918),
Md. 192,
133
104
Atl.
Tobiassen
66,
538;
Polley (1921), 96 N.J.L.
114
Atl.
Landwehr v.
153;
Barbas
Div.
(1934),
App.
769,
241
N.Y.S.
v. Foster
534; Maloy
Misc.
(1938),
964,
270
169
608;
N.Y.S.2d
Sheard v.
Electric
Oregon
Co.
Railway
Ore.
(1931),
2 P.2d
Eschenbach
v. Benjamin
Minn.
(1935),
N.W. 154; Giggey v. Gallagher
Transportation
(1937),
In was re-evaluated issue eral in the case. (Hitaffer court well known Hitaffer case, In that F.2d Argonne 811.) D.C. App. after the under Longshoreman’s husband recovered Act his wife for caused injuries, Compensation negligently aid, assistance, her asserted a claim loss of husband’s intercourse, from in- and sexual enjoyment resulting case, court, The trial in the instant de- juries. granted but, motion fendant’s summary judgment, appeal the Federal court for the held that the District Columbia stated a cause of action. After complaint recognizing the wife for such a unanimity authority recovery denying loss, the it court what called “the thin veil of rea- pierced rule,” to sustain the found no sub- soning employed stantial rationale on it could denial of predicate the action. On the the court found the hus- contrary, band and wife have in the relation rights marriage equal which should receive of the law. It could equal protection not justify the wife of an interest while denying protection the husband of the' allowing same interest.’ protection Nor could justify her action for the loss of consortium denying incurred when she is negligently allowed for the protection same interest cases of intentional invasion. After but- with the tressing opinion critical comments of legal scholars and dissenting jurists the common-law condemning rule, the court stated at : “The page (F.2d.) medieval concepts relation to which marriage jurisdic- other tions have reverted order to reach the results which have been handed to us as evidence of the law have since long ceased have any meaning.” The cases this issue after the adjudicating deci- Hitaffer
sion have been The ratio decidendi of conflicting. itself has been circumscribed court Hitaffer-case it, which decided so that no of action for loss of con-
425 the' husband’s be asserted the wife where may sortium are under a workmen’s injuries compensable compensation act, Smither in view of the exclusiveness of that remedy. 220; v. Coles, F.2d Aubrey v. (D.C. cir.) Co. 242 effect, States, to the same F.2d 768; United (D.C. cir.) 254 406, P.2d Ash 283; Ellis Fallert Ore. v. (1957), 209 307 Mullen, S. Inc. Wash.2d 261 P.2d 345, v. S. (1953), 43 Some courts have of the rejected rule expressly case, have adhered to the old doctrine denying Hitaffer the wife’s action loss in all where consortium cases her husband has been v. Ewell injured. negligently Ripley Cincinnati, So.2d LaEace v. Fla.), 420; 61 (1952 Newport & Co. S.W.2d La Covington Ry. (1952 Ky.), 534; 249 rocca v. American Chain & Cable Co. (1952), 23 N.J. 811; Mullen, A.2d Ash Sup. 195, v. S. S. Inc. (1953), 92 118; Wash.2d 345, 261 P.2d Nelson v. A. M. Lockett 42 & Co. 206 Okla. (1952), P.2d 334, 719; Garrett v. 243 Reno Oil Co. (Tex. Cir. (1954), 764; S.W.2d App.), 271 Jeune v. 226, Webb Construction Co. Ariz. (1954), 77 269 P.2d Fransen v. Zimmerman 723; (1953), 381, Colo. 127 P.2d Nickel 897; v. Hardware Mutual Casualty 256 (1955), Wis. 647, N.W.2d Kronenbitter v. 205; 269 70 Washburn Wire Co. N.Y.2d (1958), 524, N.Y.S.2d 4 176 Atchison, Deshotel 354; v. & Santa Fe Railroad Topeka Co. (1958), 664, Cal.2d P.2d Coastal Tank 449; 50 328 Lines, Inc. v. Canoles Md. (1955), 37, A.2d 82. 207 113 cases, however, In some of these one that the perceives adherence to the old rule was based on a compulsion follow rather precedent than upon conviction of the deep wisdom applicability rule. Larocca v. American Co.; & Ewell; Chain Cable Ripley v. Lines, Coastal Tank Canoles; Inc. v. Garrett v. Reno Oil Co. courts, however,
Other have rejected the antiquated and have precedents, followed the . case in recogniz Hitaffer the action. ing v. Montgomery Stephan Mich. (1960), 359 426 228; Brown Georgia-Tennessee v. N.W.2d 227, 101
33, 24; S.E.2d Coaches, Ga. App. 519, Inc. 88 (1953), Powell, Bailey S.E.2d 313; Ga. App. Gordy 106; Mis 111 S.E.2d Ga. (1959), App. v. Wilson Ark. Co. v. Miller (1957). souri Transportation Pacific Schmit Iowa A 41; S.W.2d cuff Neb. (D.C. v. Moomaw Cooney N.W.2d 480; 272, 78 Hoekstra v. Helgeland (1959 F.Supp. 1953), 109 Neb. Luther v. Maple (C.C.A. N.W.2d S.D.), 98 *17 Swenson, D. & (Pa.) v. F.2d 916; Hayes 1958), 14 250 C.2d 708. it is not
In this maze of conflicting view precedents, we can evalu- only to review the cases individually; feasible in the reasons reiterate support recognition ate they of this action. denial and more for popular grounds deny One principal is action that the wife’s is too remote and ing injury Trans Gallagher to warrant v. (Giggey indirect protection. 1100; 258, Co. 101 Colo. P.2d v. (1937), port Feneff 72 Central Hudson River New York & Co. Mass. (1909), 203 N.E. Brown v. Kistleman 436; Ind. (1912), 278, 177 89 Emerson N.E. v. 631; Taylor Md. 692, (1918), 133 98 Atl. Hinnant v. Tidewater Power Co. 538; 192, (1925) 104 120, out, N.C. 126 S.E. It has been how 307.) pointed 189 ever, that same interest to the husband has injury remote or never been too indirect when the regarded hus sues for loss. v. (Montgomery band his reciprocal Stephan, Schmit, A N.W.2d at 227, 231; 101 v. N.W.2d p. cuff 78 811, 480, at v. Co. F.2d Argonne at p. 485; Hitaffer 183 This A.L.R.2d would 814; 1391.) inconsistency seem p. 23 from of this detract cogency argument denying action. Another reason advanced frequently denying action is that it entail double for the may recovery same since the husband could in his injury, recover action for diminished his to support (Deshotel ability family. v.
427
Co.
Atchison,
Fe Railroad
(1958),
& Santa
Topeka
50
Nickel v. Hardware Mutual
664,
P.2d
Cal.2d
449;
328
205; Giggey
Co.
N.W.2d
(1955),
Wis.
Casualty
P.2d
Co.
The same on the material of consortium emphasis aspect and the of the various elements of con arbitrary separation sortium is evident in the favored some of the argument cases that since the wife has no to her husband’s services, consortium, she can have for no action loss the law does not allow for sentimental services. recovery (Stout v. Kansas Terminal Railroad City Co. (1913), 172 Mo. App. 113, cases cited A.L.R.2d S.W. 1019; 1395.) This not assumes that argument only gratuitously the concept consortium is of dismemberment into capable material services and sentimental is but services—which a theoretician’s boast —but the case law also overlooks allow the husband for loss of consortium even where ing recovery services, there is no loss of his as actions wife’s well as the for criminal conversation and alienation of affections where are for the damages so-called “sentimental services.” given (Montgomery Stephan Argonne v. at v. p. 232; Hitaffer Co. at p. Hence, the denial of the can 815.) wife’s action logically on her predicated loss inability allege of services to medieval according pleading practices.
It is further courts which bar the action argued by that Married Acts Women’s common- removing law disabilities not conferred no cause only of action for wife, loss of consortium on the but must be construed as action, the husband’s abolishing an archaic con- legal Inasmuch cept. as we are not called to adjudicate upon claim, the husband’s we need not consider novel theory which would remedy denial arbitrary cause of one; action to one partner also to the other denying nor can we our predicate of the common law interpretation that one supposition court will be able day equalize situation down the by striking husband’s action. Nor do we find that in Illinois the of “consortium” concept for the ready discard On the its pile. contrary, vitality was reaffirmed in Heck v. Schupp, Ill. where we held unconstitutional a statute the action for abolishing affection, alienation of which involves this precise concept. Other courts concede either expressly impliedly inadequacy common-law rule an denying wife action for loss of consortium negligent injury husband, her but insist that lies remedy with the legislature. (De Atchison, & Santa Fe Topeka v. Railroad shotel Ewell, Ripley P.2d at Ash 452; p. 61 So.2d. S. Mullen, S. Inc. 261 P.2d Garrett v. Reno Oil Co. S.W.2d 764.) We disagree. Inasmuch as the obstacles to the wife’s invented,” action were there “judge is no reason conceivable cannot why they be “judge destroyed.”
429 findWe at Stephan, 233.) N.W.2d p. v. 101 (Montgomery essential our wisdom in the legislature no to abdicating in concepts light function of common-law re-evaluating judicial realities. we find sagacity Nor do day present the words backward and continually parrotting looking and of other as to embalm for analyses posterity courts so are we mind contrary, On legal concepts past. ful of the in Brown v. Georgia caveat of the court Georgia Coaches, Inc., 24, Tennessee S.E.2d 519, 32, Ga. App. 88 77 “* * * we do indeed adjudicating precise this issue: have a is not to but that charge ‘perpetuate ‘charge keep’ error,’ allow our conscience or decay, or to reasoning turn deaf ears to and new life.” new light we with those and must jurists
Consequently, agree critics find that the advanced in the cases for who reasons the wife’s action for loss consortium denying substance, are without and have been added to apparently dictated support by history conclusion predetermined Torts, the fear of extending liability. (Prosser, 948; 36 Cornell L. 148; L. Rev. Harv. A.L.R.2d Q. 672; 64 23 1391; v. Argonne F.2d (D.C. 1950), Hitaffer 183 811; v. Schmit Iowa (1956), N.W.2d Acuff 248 480; Montgomery Stephan (1960), Mich. Missouri
N.W.2d Miller Co. v. Transportation Pacific Ark. 41.) Obviously S.W.2d his torical milieu which the rule has been com originated a wife is pletely Today no her husband’s changed. longer chattel, but stands in the eyes of the law. equal (Acuff Keller, v. Schmit at Brandt Ill. There p. 503.) fore, medieval precedents predicated on a are out of society with the harmony conditions of modern and cannot society, good conscience deemed determinative. As Car Justice “Social, dozo stated: reforms aptly have political legal the relations between the changed sexes and woman and put man upon equality. Decisions founded plane upon a are assumption by-gone inequality unrelated to present- *20 realities, be to and to prescribe not day ought permitted Law, Cardozo, the The of pp. rule of life.” Growth to numerical we reasoning Inasmuch as prefer cogent authorities, courts which of must follow those we superiority society that the hold since the husband’s to conjugal hers, the wife’s of his an invasion of wife is no than greater as same of the law interest merits the conjugal protection Further- an invasion of the husband’s interest. conjugal more, if the the wife’s from law interest protects conjugal invasions, so-called as in alienation-o f-affec- intentional the cases, it to the same interest tions cannot deny protection it where has same injured been invasion. by negligent cases, reason relief exists in both namely, basic for granting the the as the unit which our protection family, upon society founded. moreover,
This is in accord with the entire approach, interests, movement the law toward familial protecting and the of its recognizing members. changing obligations Luhman, v. Ill. (Johnson Parker App. 598; Daily Keller, F.2d (7th cir.) Brandt v. Ill. Amann Faidy, Schultz, ante, Ill. 422; Saunders v. Therefore, p. 301.) the complaint of Elizabeth plaintiff Dini for the loss seeking damages of consortium of her husband due the to he injuries sustained result de fendants’ negligence, sets forth a basis of properly liability the law must It was error the recognize. trial court enter summary her judgment dismissing complaint. on this initially Although defendants appeal argued essentially the issues of liability, their for re- petition hearing they the of a urge new trial. propriety Defendants claim the verdict is evidence, the supported by and refer to certain conflicts in the evidence. It was the province however, the jury, to determine whether to give greater credence the testimony of defendant owner building lessee, and testimony tenants and the fire police and department officials as to the condition of evidence in this opinion, As noted previously premises. admissions some even including was overwhelming, owner, maintained that the premises poorly defendant ordinances, that these in violation of numerous fire the fire. Under intensity contributed to conditions circumstances, contended can be seriously those hardly mani- verdict was against the jury unsupported trial. a new fest the evidence so as to warrant weight be should further that a new trial Defendants argue because of the of certain granted rejection alleged building to the date of made sometimes inspection reports prior fire. trial erred admitting only While court probably exhibits, one of these this can deemed hardly ruling *21 reversible error of and view the overwhelming testimony exhibits that the a fire haz- revealing virtual premises Moreover, ard at the time of the fire. those rejected inspec- tion made over a reports, of were of limited period years, and of relevancy, since the questionable authenticity, person who them not and prepared did the of testify, testimony the who was building called inspector by defendants discredited on thoroughly cross-examination. find no We therefore, justification, a trial new authorizing merely on the basis of the of rejection these exhibits. improper We are the that the opinion result have would been no differ- ent had the trial alleged errors not intervened.
In accordance with our the analysis, entered judgments in these claims reversed, should be with directions to ad- judicate the Dini, complaint Elizabeth plaintiff and to reinstate the verdicts in jury favor of Gino Dini plaintiffs and Lillian Duller. remanded,
Reversed with directions. Mr. Chief Schaefer, dissenting: Justice I do not with agree the conclusion of the majority upon of question Elizabeth Dini to recover right loss of consortium. When opinion analyzed, ap- advanced for that reason allowing
pears principal in favor of the wife to recover is that a action comparable at law. husband had common developed early opinion of that and con- recites the familiar history development, demonstrates that the social and economic condi- vincingly tions which rise to the husband’s action have no rele- gave Nevertheless, vance to achieve order apparently today. kind of establishes symmetry, opinion matching action the wife. It is no more than an historical accident'that the hus band’s common-law action survived the enactment of the Married Women’s Act. That statute drastically changed women, status of married and it is legal surprising it was construed in the narrowly cases that con early sidered the to be to an scope recovery allowed injured married woman. The husband’s action has survived and not it has theory by acquiescence because withstood it, critical cases few have referred to analysis. Only almost all of references have been way of dicta. (Blair v. & Normal Electric & Bloomington Railway, Ill. Heating Co. & Milwaukee Elec 400; Chicago App. tric Co. v. 116 Ill. Railway Nixon v. Krempel, App. Ludlam, Annett, Ill. City App. 273; Bloomington 16 Ill. The husband’s 199.) action for loss of App. con a vital sortium is not our part litigation today. processes In an that action the of current attempt give appearance vitality cites Heck v. opinion Ill. de Schupp, *22 in cided but that did case involve husband’s ac tion for loss of consortium due to a On negligent injury. it involved the contrary, intentional tort alienation affections, and the distinction between in for liability tentional and liability conduct for conduct still negligent survives in the law. action, to
Subject it legislative is the function of a court, this, common-law in a case like to fix the boundaries within an which to one injury person another gives a right the lives life is linked to Each man’s to recover damages. has its others, inevitably an to one and injury many aware, I am how- lives So far as of others. impact upon ad- ever, that who is it has never been everyone suggested should inflicted another affected an versely injury upon to It be be recover his damages. may possible allowed to dis- husband and wife has that argue relationship that justify recovery tinctive characteristics would in denied to those who stand other relationships in the But no such is advanced injured person. argument and it is hard to see majority why, example, opinion, of an man should be allowed a injured recovery wife If the is denied to his children. boundaries of per- extended, missible are be should ex- recovery they involved, tended realistic of the factors upon appraisal achieve with an not to outworn common- consistency law cause of action. No such has been made. The appraisal would seem an majority em- reasoning permit for the to recover he suffers ployee reason of damage death, in order to match the employer’s injury com- mon-law action servitium amisit. per quod
In addition to the substantive issues involved estab action, the new lishing right procedural problem of double possibility recovery should be faced. squarely I do not understand the discussion of this problem the It states: “Another majority opinion. reason frequently advanced of action is that denying entail may double recovery for same injury, since the husband could recover his action for his diminished ability to sup his family. This port argument emphasizes [Citations.] one element of only consortium—the loss Con support. sortium, however, includes, in addition services, to material elements of felicity intercourse, sexual companionship, all welded into a conceptualistic unity. (Montgomery Stephan; Co. at Argonne p. 814.) Consequently, Hitaffer v. in this action the wife is not suing loss of merely sup- *23 but for other elements as well. conceivable double
port, Any however, can be obviated from the recovery, by deducting in the consortium action damages com- computation any her husband his action for the pensation given impair- to ment of v. Co. ability (Hitaffer support. Argonne Hence, at since 815.) double p. possibility recovery can be eliminated this adjustment simple damages, action, should not constitute a basis for her denying elements includes which are no many way compensable action. The the husband’s ‘double is recovery’ bogey cliche for convenient the wife’s action for merely denying loss of consortium.” very however, next paragraph opinion,
ridicules the possibility dividing, “dismembering” It of consortium.” “The same says: “concept emphasis the material of consortium and the aspect arbitrary separa- various elements of tion of the consortium is evident in some of the favored cases that since the wife argument services, her has no to husband’s she can have ac- no consortium, for tion for loss of the law does re- not allow for sentimental services. Kansas (Stout v. covery City Terminal Railroad Mo. App. cases cited A.L.R. 2d This 1395.)
S.W. argu- assumes that gratuitously ment only concept of dismemberment into material serv- consortium capable ices and sentimental services—which is but a theoretician’s overlooks the case law also the husband allowing boast—but even for loss of consortium where there is no loss recovery services, as of his wife’s well as the actions for criminal and alienation of conversation affections where damages are for the so-called ‘sentimental services.’ given (Mont- at gomery Stephan p. Argonne Co. at Hitaffer Hence, the denial of the wife’s action cannot 815.) p. on her a loss inability logically predicated allege medieval according practices.” services pleading can solve nor neither adverbs and epithets Adjectives, causes of two overlapping When eliminate problem. before, the has grown one where action are made grow It be obviated is real. cannot recovery of double possibility *24 because in the majority opinion, the method by suggested be tried will wife’s action that the there is assurance no in the same will be filed first, the actions two even that the of two joinder A of compulsory court. requirement exists. such would but no requirement causes of action help, the refuse to sanction I think that this court should action, the that faced sub new as other courts squarely have stantive done. Kronenbitter and procedural problems v. Co. N.E.2d Washburn N.Y.2d (1958), Wire Atchison, Deshotel v. & Santa Fe Railroad Topeka Cal. 2d P.2d 449; Neuberg Bobowicz Pa. 162 A.2d Cherry Snodgrass Burrell A.2d Corp. (N.H. 1960), (Adv. Op.)
On the of issue the of the owners build- liability Dini and ing Gino to the administratrix the estate of Duller, Edward I think that the defendant’s motion for J. a new trial should have been allowed. The con- majority cedes that it was error to exclude the the reports inspec- tion of the and to minimize the building, attempts error. But much of the as to testimony violations of alleged ordinances the on the owners of the part was building quite one, unsatisfactory. The issue was a crucial and I do not believe the that serious raised question exclusion of this evidence think, too, should be off. I sloughed the motion a for new trial should have been allowed because to the plaintiff argued without jury, any what- support evidence,
soever in the that the owners of the had building themselves started the fire. This unwarranted argument was I extremely prejudicial, do see how the prejudice could be eliminated short of a new trial. Klingbiel, also dissenting:
Mr. Justice I wish to add full accord with the views of Mr. my Chief Schaefer in his dissent on the consortium Justice question.
I express must also with the my disagreement majority opinion the matter of Under our liability. system justice these upon cases is based responsibility negligence, negligence must be of the injury. cause proximate I agree with court that shown in these was negligence cases, not because ordinance violations upon stress, opinion much because majority lays so but operative themselves. facts however,
I agree, do not with the tacit con- apparently clusion that follows matter course. The liability other requirement of injuries law—that negligence caused proximately deserves atten- negligence—also tion. There is no doubt on this that a record could jury find the reasonably negligence cause of proximate *25 fire; liable, the course, and the of defendants would be for any other damage injury thereby. caused proximately But the in very question the is whether the injuries case question caused. so To stop after the mere finding existence of then negligence, and to announce with liability more nothing than statement the “violations that proxi- mately caused the injuries,” is to decide a case bare fiat.
It me seems to the injuries sustained here could not foreseen reasonably of the mere as a result accumu- of lation trash and other conditions to which reference is made in the start, opinion. doubt, fires no majority Most from someone, carelessness on the but we can part hardly on such predicate flimsy grounds in- liability every that would jury not have fire. happened but for the If a excitement, should faint spectator from the or suffer a heart attack from the shock of such a there would be tragedy, as much just basis shown recovery as present course, are while possible consequences, record. Such for liability. remote to grounds afforded much too mention, some perhaps. receive objection A should third direct on jurisdiction The matters court has which this statute, do and they are stated appeal plainly require- cases. procedural include Unless personal injury of con- ments this nature are to become mere matters bar, appar- in cases which jecture part on the opinions them, taken fail meet and which nevertheless ently are merits, out the upon should grounds point in the direct is authorized. I see none records appeal present cases. I
As to substantive issues would affirm judgments superior court. Mr. also dissenting. House, Justice
(No. 35409. People in Er- Defendant Illinois, the State ror, Morgan, Plaintiff Error. vs. Fred
Opinion November filed