Hastings Ex Rel. Hastings v. James River Aerie No. 2337

The jury given correct, instruction for him not to was in order occupation mer affirm the judgment and w.e of the trial disabled. totally directing payment court of lifetime benefits Thus, may properly consider jury a Kooker. plaintiff disabling when the occupation insured’s life, Affirmed. his training in happened, event condition, his mental physical and present ERICKSTAD, J., PAULSON, history and educational C. work

age, prior VOGEL, presented JJ., all other facts PEDERSON and background, and concur. bearing a have evidence which by the fit the insured could himself what work

on time. Income which a reasonable occupation is from another be derived

could occupa The consideration. important in a remunerative fair must be sense, merely nominally,

substantial reasonably provide compensation

and must earned in the in with that comparable Mary E. and Karen HASTINGS E. Has occupation. Couch on Insur former sured’s friend, tings, Mary next Has 2d, 53:49, 53:56 ance tings, Appellants, Plaintiffs Against general principles these compare the instruction in case must RIVER AERIE JAMES NO. 2337—FRA instruction made reference to bar. EAGLES, corpo TERNAL ORDER OF income, age, training, occupation, insured’s ration, al., Appellees. et Defendants and he bearing what work other facts equip himself for within reasonable Civ. No. 9247. factors to be appropriate These time. Supreme Court of North Dakota. majority under the view. considered substance, worded is an the instruction as Nov. description majority rule accurate adopted. which we have We find itself correctly given enlarge and did not disability policy. terms of interpreted holding not be

Our should in income will that a mere reduction

mean totally an insured as disabled under

qualify attempt- policy. Nor are

an insurance percentage

ing to establish fixed below drop income cannot before becomes professional person A

“insubstantial.” $60,000 per year may

earning more cut endure a more drastic in income

able to earning wages much lower

than Yet, by special virtue laborer. manual

training ability, professional person severely disability.

may be affected is a

Clearly, disability total relative term. reason, interpretation proba- its

For that very

bly jury, entrusted to the whose weigh particular is to facts

purpose their, knowledge light own case experience.

MacKenzie & Jungroth, Jamestown, plaintiffs appellants; argued by James Jungroth, R. Jamestown.

Hjellum, Weiss, Nerison, Jukkala & Jamestown, Vinje, appel- defendant and lee, James River Aerie No. 2337—Fraternal Eagles, corporation; Order of argued by Nerison, Russell G. Jamestown. Vogel, Vogel, Kelly, Brantner & Fargo, and appellee, for defendant Ernest DeNault Robertson Post No. Legion; 14—American argued by Vogel, Mart R. Fargo. ERICKSTAD, Chief Justice. case, Mary In this Hastings, as the wife of R. Norman Hastings, and Karen E. Hastings, daughter Mary and Nor- man, through her mother as next friend, bring an action under our Dram Shop Their action is to recover from three licensed li- quor dealers in the City Jamestown, The statute Dakota, gift of alco- their sale or North sought reads: Hastings when he beverages to Mr. holic They allege wife, “Every child, parent, guardian, intoxicated. of the crime of or other employer, him be convicted who shall be caused person, shooting death or means degree murder second by any person, support intoxicated Evangeline Opp, resulting of intoxication, of consequence shall have Penitentiary for to the State commitment right against any of who years. ten to seven have caused shall such intoxication by complaint, In of Mrs. paragraph eight the selling, bartering, disposing, giving or of deprived that she was Hastings asserts beverages contrary alcoholic away to society, companionship, coun- support, the statute for all sustained.” 5-§ sel, of her husband to her guidance 01-06, (Emphasis added.) N.D.C.C. $250,000, and that damage in the amount of At English common a husband’s Karen, deprived of the daughter, was her right to recover for the loss of his wife’s father, advice, of and counsel her support, a property right. consortium was considered $250,000. damage in the amount of Card, 1, 1027, Foot v. 58 Conn. 18 A. complaint, of the it is paragraph In nine Blackstone, 3 W. (1889); Commentaries damage of that some the suffered asserted uses term “property” 143. Blackstone the support, loss Mary Hastings of in the same context in we use the counsel, guid- society, companionship, “right”. Card, word court in v. Foot permanent, will her husband of ance supra, uses the two words interchangeably. damage of the suffered Karen that some 1889, year Foot was written prior to support, Hastings, because the lack of adoption S.L.1890, of North Dakota father, advice, of her will be and counsel 110, 15, which is the Section source of the permanent. phrase “person, or property, means of 5-01-06, support” found in Section answering complaint, one of N.D. Prior other cases of approxi James C.C. defendants, River Aerie No. Several period mate time viewed consortium as a Eagles, moved to Fraternal Order right, many them property quoting “society, companionship, strike words approval. E.g. Foot with Lockwood citing guidance” part from that counsel Lockwood, Minn. v. N.W. complaint eight relating paragraph Price, (1897); Price v. 91 Iowa 60 N.W. claim, Hastings’ strike to Mrs. Jorda, Iszler See part and counsel” from that words “advice (N.D.1957); Larisa Tiffany, N.W.2d complaint eight of the relat- paragraph (1919); 105 A. 739 42 R.I. Warren v. addition, claim. In the Ea- ing to Karen’s Warren, (1891); 89 Mich. 50 N.W. 842 paragraph all of nine moved strike gles N.Y., Jaynes, Jaynes v. 39 Hun. complaint. We conclude that of consorti granting trial order It is from the court’s 5-01-06, property um is under Section N.D. Hastings ap- to strike that motion C.C. court. to this peal argued, however, English that at appeal, questions three addition wife law a common recover dam- pursuant certified to this court have been ages for the loss of husband’s 32-24, Those Chapter questions and, accordingly, injury does whether, Damage Civil not include wife’s to recover for loss N.D.C.C., (1) wife can Shop under the Dram Act. consortium consortium, (2) for the loss of recover recover for loss counsel child can does loss of What consortium involve? (3) a child can majority, guidance was the rule common law and has What and, guidance changed, loss counsel the rule been is there any trend to be noted? majority. after general analysis of this allow the wife Because to recover damages for subject contained loss her husband’s services would re- extensively therefrom for back- quote recovery. sult double Although the commencing at page 904. ground, have given courts wife a cause of year which Hitaf- “Before action for recognize consortium decided, pre- Co. was Argonne danger recovery, fer double they point all vailing view in almost states out matter can be solved have a common-law did not cause a wife limiting the recovery- wife’s ‘nonpe- of her of action cuniary’ or ‘sentimental’ aspects of con- negligence due to the sortium, and that damages awarded Although the Hitaffer person. third wife for loss of her husband’s later overruled on another Case was simply services can be deducted from the point, recognized leading case award. that a it was held wife has a in which “The courts which allow the wife to against negligent common-law recover for loss of consortium reject the of her husband’s con- for loss tortfeasor argument recovery that should be denied The courts in a number of other sortium. because the loss is too remote and indi- adopted have since the rea- jurisdictions rect, pointing out that if the husband is Case, soning overruling of the Hitaffer allowed to recover for loss of his wife’s to decisiqns contrary. their earlier consortium, the wife’s loss of her hus- hand, a number the other of courts On is band’s consortium no more indirect or reasoning rejected the of the Hit af- have remote. to permit ter have refused Case “Most of the courts that have refused for loss of wife to recover consortium. permit the wife to recover for loss of principal denying “The reasons injured husband’s consortium sodo wife a cause of action loss of her ground that she had no cause of ac- negli- consortium due husband’s law, at common and if the common gence (1) third It would law is to be changed, it is a matter of recovery damages; (2) double result far-reaching public such policy that it can the loss too indirect and remote from changed by best be the legislature. n act; (3) wrongful it would result in a out, point These courts for example, that by persons, of actions other multiplicity allowed, were recovery if it would raise relatives, children, part- such as business questions concerning additional the distri- ners, persons who and other are either damages, damages bution whether the upon injured or dependent related to belong wife alone or to the hus- (4) point the law on person; jointly, and wife band whether the ac- changed, it is a matter that can to be joined, should be tions and whether other legislatures rather be handled injured members of the person’s family than courts. also be given should a cause of action for argument “The that companionship, loss of society, affection, loss of consortium wife for would result like. The courts that re- allow damages in double arises covery, hand, on the point other out that clarity a lack as to what the term from denying since law the wife the agree Most courts ‘consortium’ means. recovery for loss of consortium was that consortium includes such items as judge-made, judge-destroyed. can be love, affection, companionship, society, * * * * * solace, comfort, support, relations, sexual “In states, a number of argued It has been services. the rule is that injured husband since the husband entitled to recover damages for injured impairment capacity of his wife’s but work, life, engage and to wife enjoy not recover for loss of her life, pursuits the so-called normal husband’s consortium. There is a based on sex alone would authority whether violate Article I on the split of the Constitution of is unconstitutional on Ohio the Four- rule the wife of Amendment Constitution of deprives teenth ground 900, The the law.” 36 A.L.R.3d the United States. common-law dis- tinction between husband and wife in 904-906. is equally regard based significance all this? Are What unreasonable, upon an concept discredited applying in this case to we restricted of the wife subservience to her law that of common rule ancient husband. The courts should not perpetu- recover for the loss of a the common law a ate in discrimination We We consortium? think not. spouse’s constitutionally could not be created quoted just annotation see from Wiley, Leffler statute.” 15 Ohio law as to consortium has the common App.2d (1968). N.E.2d condi- changing times and to meet evolved See Annot. func- proper this was a We indicated tions. of Common See also Court Pleas decisions Unke, in Lembke v. the common law tion of Brown, Clem Ohio of Ohio: Misc. quoted where we (1965), 401-402 and Umple 207 N.E.2d quotes Justice a Kansas decision from Dorsey, 10 Misc. by v. Ohio 227 N.E.2d saying: Cardozo “ * * * cases, For discussion of these for the The inn that shelters A.L.R.3d see 36 journey’s end. night traveler, ready A must be for the like principle recognized (Milde have a of consortium is It must our State

morrow. Dautel, Leigh, 189 Kan. 75 N.D. growth.” Hoffman N.W.2d 530 538.), a wife’s right previ 368 P.2d similar has recognized ously not been in our State. See Shop statute, Our Dram Leigh, supra, Milde v. at 28 N.W.2d 534. 5-01-06, N.D.C.C., supra, upon which the based, employs this action is complaint in Lest it should be argued that there meaning certain at common that had words ais constitutional or rational basis for dis noted, right previously As con law. tinguishing between á husband’s right sortium, right a available a a interest, and wife’s similar consortium husband, later extended to the wife said in a what Federal District think of courts of this coun a number substantial Opinion for the Northern Court District right to recover for the loss of try. Is the significant. Illinois encompassed in the Dram now is apparent would “No reason which husband, it is Act? We think Shop diverse treatment accorded support If be the wife. it it must also wives in this Indiana on husbands not, surely Act would violate Sec were might It suggested issue. which tion 20 of our State Constitution history process of has carved out a defini- privileges any citizen prohibits granting rights upon ra- tion women’s based a to all and the Fourteenth granted exist, which has ceased to but tionale to our United Constitu States Amendment upon precedent. which based firm denying from prohibits tion which State are aware of no principle “We which jurisdiction its person within any longstanding protects axiom law protection of the laws. equal it being invalidated when is anti- from overruling holding opinion trial court In quated offends some portion bring a wife could not action currently interpreted by as constitution her husband’s loss of Supreme holding Court. In of Ohio said: Appeals Court abrogat- of Florida has been common law Amendment, affirmatively Fourteenth were cre- ed “If statute sue yet in a husband and her husband de- that a woman ate such wife, such a classification common law doctrine to the con- deny spite trary, Federal 11,13, a South Carolina District as violative of Sections our recognized that married women are Constitution, Court State re and In Estate of Jen protection sen, to the same ‘entitled (N.D.1968) N.W.2d 861 where we regardless of an- other individuals law held a certain inheritance statute violative provisions of the common Al- cient law.’ of Section 1 of the Fourteenth Amendment Alexander, 140 F.Supp. 925, exander United States Constitution and Sec (W.D.S.C.1956). That women cannot tion 20 of the North Dakota Constitution. F.Supp. See tion.” for its existence other than considered to Railroad ana law. Where be determined that more than a on clearly arbitrary, without shown that the persuasive which itive economic husband’s chattel because based doctrine sue also “In the instant “Nevertheless, offered, ****** for loss ^[*] courts justification Owen v. Illinois deny Karczewski v. rational which viewed woman as her any Co., interests, ^[*] 821-822, and defendant and the Indi- offer no relic offered no 274 F.Supp. be consortium is not can no reasonable challenged upon an this ^[*] the denial of the wife’s basis. reasonable an in matters case, an ancient ‘servant.’ Some grounds. it must arbitrary Baltimore right. longer required. Nothing other, Baking ^[*] we have already any historical classification is basis, 169, 175, longevity is clearly can be be explained justification it must be ^[*] clearly Corp., era in the classifica- excusable involving and the cases and is ** upset ^[*] legal Ohio pos- 260 can 178 5-01-06, N.D.C.C., since it no that under does in this case whether Mr. Hastings ing note that (E.g., ion preme later struck down in Notwithstanding that the United States Su- mon statute which had its significant: Although we are not asked to determine equal protection for has Jensen, ment, children for their “This Since Dunkelberger, Jensen, opinion today. still not upheld Federated Mutual no Court in Labine v. S.Ct. in Jensen bring statute, Section 20 of our State Constitu- sustains Jensen and gives life to include the “other place we think sustained a statute similar to the one we legislature, by an action on his own behalf has majority Jensen, Sec. person” which 172 N.W.2d 137 as one of its basic tenets we were dealing with a our It is also comforting to parents’ 28 L.Ed.2d what origin us in “intoxicated all.” we are view system Imp. amends punishes phrase Vincent, our transgressions, would action follow- such a & H. Ins. Co. English com- said there is re Estate of view. (N.D.1968). of Section 401 U.S. innocent person” govern- appear phrase (1971), has (Iowa opin- S.L. Our view to deny 1969); a wife the right Excelsior, Village Randall v. for the loss of a 81, 103 (1960); consorti Minn. N.W.2d 131 Malone v. allowing a um while Lambrecht, recover for 305 Mich. N.W.2d the loss of a wife’s (1943).), would unnecessary find it to concern protection of the equal denial of the laws is possible ourselves over double recovery our opinions with consistent Johnson v. require joinder from failure of the intox Hassett, (N.D.1974), 217 N.W.2d 771 where person. icated See 36 A.L.R.3d guest we held our statute unconstitutional 2(b).1 According Wade, to John W. Professor of omits Section 695 and amends Section 693 Torts, Reporter for Law the.Restatement of spouses. published, cover both When it will Second, published by the American Law Insti- read follows: tute, adopted Tentative Draft was as a final draft the Institute in 1969. final version tion, commencing on may opin page conclude this ending Before questions ion, consider two and we must 544 of cited note. page herein, involving three, to earlier referred dispose We of the contention that to to sue for loss coun daughter’s the child’s is to deprive disallow action it of We hold that she guidance. sel of the laws by stating present for these losses under sue not that we believe there is a rational basis for we say law. What here should our state distinguishing between an action for the prohibit where not construed loss of consortium a husband or wife and is allowed under parent dies an that of action a child the loss of 32-21, Death N.D. Wrongful guidance parent. counsel and See 69 See Dahl North American Creamer C.C. 528, 544-545. A.L.R.3d ies, (N.D.1953). N.W.2d herein, For the reasons stated the order interesting writer of rath- the motion to strike is granting reversed in comprehensive on a er note “Child’s Action with answer to the part, first certified Support” why Loss of cites ten reasons being yes answers to the specific legislation an short such questions and third certified being second for same should not be allowed. providing The case is remanded trial no. accord- arguing against “Counsel extension of ingly. of action to child a cause attention, parental support, training, and VOGEL, JJ., SAND, PAULSON and con- may wish to refer to the follow- affection cur. ing considerations be cited recognition, namely, (1) against PEDERSON, (concurring special- Justice absence of enforceable claim on the ly)- services, (2) part parent’s child’s stipulation signed by any party By a precedents, (3) the uncer- absence suit, give attorneys attempt to this tainty remoteness jurisdiction questions this court to consider involved, (4) possible overlap with the days the trial court certified seven after (5) multiplication recovery, parent’s complete jurisdiction over case by lost (6) litigation, possibility upset- appeal striking taken from an order an (7) ting parents, made with settlements complaint. provision from actions, (8) danger fabricated I answer the certified would refuse costs, (9) public insurance increase because, by questions answering, we expressed jurisdictions in some policy rendering advisory opinion. See effect statutes, ‘heart balm’ enactment of Co. v. Lubbock Mach. Grain & Scranton arising from family problems (10) Co., (N.D.1970), Supply 175 N.W.2d to children.” 69 A.L. segregated awards 32-24, NDCC. Chapter omitted.) (Footnote 532. R.3d itself, regard appeal to the it asks With engaging in discussion of each of Without we review an no considerations, way order and without necessari- those categories them, within the seven comes agreeing with all of we think it ly may Supreme be carried to refer to the orders discussion detail sufficient grounds for denial of such an ac- Court under § of those NDCC. spouse providing BY curred the second “§ 693. ACTION ONE SPOUSE FOR BY HARM CAUSED TORT AGAINST medical treatment. “(2) possible it is not to do SPOUSE. Unless OTHER “(1) society One who reason of tortious action for loss services re- spouse quired joined or is liable illness to be with the action for illness conduct subject liability harm, bodily bodily recovery harm is other loss soci- spouse resulting ety other and services allowed two society spouse, joined.” and services of the first in- of Vol- actions are so Publication impairment including

cluding capacity for III sexual ume the amended version of intercourse, expense expected February and for in- reasonable of 1977. Section 693 Heiser, Saetz As said in v. (N.D.1976),“when

67, 70 matters have been researched, argued, briefed and

fully question the merits which of

involve

significant concern, this court will decide case on its merits rather than remand- ** ing for technical corrections *.”

Therefore, reluctantly I concur in the re- being that, without sure if the case

sults completed judgment

had been entirely there have been an

appeal, argument, especially

different con- possible raised.

stitutional out

that we have knocked of consortium instead of

extending to wives. SERVICES, INCORPORAT-

HOSPITAL

ED, corporation, Plaintiff Appellee, KNUTSON,

Allen W. Defendant

Third-Party Plaintiff, DAKOTA, OF

BLUE NORTH CROSS Defendant,

Third-Party ANDERSON,

Damon Intervener Appellant. 9222. No.

Civ.

Supreme Dakota. Court North

Nov.

Case Details

Case Name: Hastings Ex Rel. Hastings v. James River Aerie No. 2337

Court Name: North Dakota Supreme Court

Date Published: Nov 5, 1976

Citation: 246 N.W.2d 747

Docket Number: Civ. 9247

Court Abbreviation: N.D.