*1 82 language qualifying However, the “Prior to final
Plan. by county provided plan, law” now of a master as adoption my opinion, appearing refers, in 1 5 in Subsection of Section by plan adoption of the elotors to the final of master provided 18 17 and affected districts as Sections approval manifestly mere does'not refer Law. It School county plan As of education. of the master boards finally County not been the Master adopted in Walworth Plan has and 18 and electors under Sections by majority petitions of the electors were filed reorganization proposed each district affected school attempted deletion Subsection 1 Section under territory district under Section Glenham effect. without force or complete independent ’interpret 20 as a
To Section my opinion, reorganization violence, in method of school does 'reorganization purpose to the whole intent and of the school ¡procedure. power petitioners plac'es in the hands of a few It regard accomplish reorganization school 'district without regard of a Plan without wishes to Master to' majority Furthermore, electors district. territory has into is thus transferred school district pro- opportunity approve disapprove of the nc either to change. posed
ROBERTS, J., concurs. Appellant Respondent HELGELAND, HOEKSTRA,
(98 669) N.W.2d (File 13, 1959) Opinion Nos. filed October
Rehearing denied November *2 Appellant Falls, Sioux for Plaintiff as Mundt, Mundt & Respondent in Case No. as in Case No. 9710. A. Smith, Falls,
Woods, Fuller, Roscoe Shultz & Sioux Respondent Frieberg, Beresford, in Case Defendant as Appellant Case No. No. as brings BIEGELMEIER, J. Plaintiff this action surviving against of the estate the administrator Helgeland for loss of consortium Stener injuries resulting death. from his husband injuries and death were caused Plaintiff that thesle claims negligence decedent. defendant’s by separate motion The defendant in his answer following grounds: plaintiff’s moved to dismiss action on *3 (1) plaintiff upon the failed to state a Pause of action that (2) granted; complaint that the failed relief could be which granted upon relief could be to state a cause of action injury except period the death of time between the plaintiff’s1 denied defendant’s of the husband. The trial court ground upon granted the motion .motion the first based granted upon thereafter to the This court (cid:127)based both defendant and second. plaintiff appeal res leave to from the pective entered the court. orders appeal question presented is defendant’s whether surviving or not the wife can recover resulting negligent her husband consortium from a negligent of another. because acts provides: 65.0103 SDC including law,
“The evidence the common merchant, the is found in the decisions the law tribunals. law, in-
“In this state the rules of the common cluding force, merchant, are in the rules of the law they except the will where conflict with expressed sovereign power, in the manner stated 65.0102.” section apropos provides: so 65.0102 far as here SDC sovereign power expres- “The will of * * * sed:
85 “(4) state; of this By the Constitution “(5) Legislature; by the By statutes enacted 559, Searls, 1928, In De S.D. Bates statutes, we “Therefore after to these referring said: * * * case.” common law must control instant Scotvold, In Scotvold v. 298 N.W. S.D. state,
court held in this the common law was in force with the exceptions stated in 65.0103. SDC
The court may of a state to a conclusion as come the common of that state different from conclusion law state; duty court of another of this court to it is ‘the declare the common from the decisions of law tribunals-. SDC 65.0103. may
“It well settled common law of a state vary differ from that of other states or even time to time in order to meet peculiar, perchance varying, Thompson conditions and circumstances of the state.” v. An drews, 165 N.W. S.D. history
A review of the origin Common /the on the questions law Courts opinions presented *4 by will appeals these interest and be of assistance in a conclusion. reaching law, the -member
By family primitive deemed by to be harmed unjustifiable family an disturbance of rela- Torts, Ed., tions was family head. Burdick’s Law of 4th 289; 3 Bl.Com. Scott, 1917, 139. See v. 38 Moberg § S.D. 1917D, 732,
161 L.R.A. from quoting Flandermeyer v. Cooper, infra. Under this primitive and Blackstone’s com- mon regarded chattel, servant, law wife was as a or a master, husband, who owed her service to her her and she her, any injuries could not sue for by sustained as an indi- vidual, action except joint an in the names of the hus- wife, recovery band and obtained vested being husband, discharge who could the cause of action without consent, or her prevent her -suing refusing join aas
86 supra, Burdick, Laughlin 156;
plaintiff. Eaton, 54 Me. v. legal back- and historical statements 291. Similar opinions ground appear here cited. treatises and injury personal recognized early that a common law The person a third the tort of woman caused to a married pain action, for her gave one two rise to causes expense suffering, incurred for the the other and and nursing con- 'husband’s for the and medical attention society sequential in- sometimes loss of her and services con- term with the in, from used cluded differentiated sortium; of in- enforcement that these actions were for the implying rights, injury dependent wife not Leigh, 418, 28 N.W.2d husband. Milde 75 N.D. See Harper Torts, James, § 738; The Law of & 173 A.L.R. seq. Wife, Com- Am.Jur., 490 8.9; § Torts, et See 27 Husband 21 note ment, § the Law Restatement A.L.R. 1519. remedy per quod consortium amisit The husband’s wife) (whereby per quod company hie he lost the —of servant). (whereby
servitium he lost the service—of his 3 Dictionary; 140; Black’s v. Manchester Bl.Com. Law Guevin Railway, 298, L.R.A.1917C, 289, A. N.H. Street p. Pollock, 410; many Ed., Torts, find The Law of 10th 237. We theory courts later stressed the servitium-service consortium-companionship theory, the wife rather than the transposition of the above distinction. recognized The first such actions at common law resulting injury. consortium intentional were Livesey, (1619). Guy Eng.Rep. Cro.Jac, 502, There brought trespass a husband an in his name battery assault, beat, assault and “for that the defendant did * * * plaintiff; wound that he assaulted and beat * * plaintiff the wife of the following opinion, verbatim from the the defendant *5 having judgment, insisting plain- moved in arrest of that the tiff-husband: battery
“cannot have an wife, action for the of his ought join to his action; but wife with him in the for
87 ought damage wife, the (if to have done to the she husband); she survive her the defendant and so punished for one the same bat- twice and tery, plaintiff recover; if the for this here should recovery bring- of the husband shall her of not bar ** ing action, if *. she survive him held,
“But ail Court that action was brought, brought respect well for is not brought wife, harm done to1 but it for particular husband, loss of the he lost company damage wife, of his which is himself, to loss for which he shall have this action, the master have for loss of his shall servant’s service.” (a) daughter
In footnote to this case it stated that where a family inis such a situation in her as to father’s be con- debauching, per servant, sidered quod action will lie for 139, servitium amisdt. 3 Bl.Oom. right of the husband was later extended allow any negligent injuries whereby
him to recover to the wife (his wife) society long “lost the he comfort and for a pay great expenses time, and liable incurred became * * * (her) whereby nursing plaintiff her, the time, lost * * * space long for a and for services want during prevented carrying time such services was * * *” of a dealer Brockbank on business etc. v. The Rly. Eng.Rep. Co., 835, 158 H. Whitehaven Junction 7 &N. (1862); Torts, 104, on § 3; Prosser 2d Ed. note see Skoglund Mpls. Ry. Co., 1891, St. 45 Minn. right recognized 11 L.R.A. where this
distinguished from the husband’s of action for his injuries negligence. caused the same In Marri Co., R. v. Stamford L.R.A., St. 78 A. Conn. N.S., 1042,the court referred to this anas extension of the law in these words: common day
“Since Blackstone’s there has been an ex tension of common-law of a husband to recover consortium to cases which *6 the result the wife was. sustained generally it negligence, held that it is so that of injury is intention difference whether the makes noi ally negligently or inflicted.” variously Holbrook, The has been defined. Consortium Change Meaning Consortium, 22 Mieh.L.Rev. of (1923); Lippmann, Breakdown 634; Iowa L.Rev. (these (1930); are Consortium, interesting articles 30 Col.L.Rev. 651 subject); Stamford, Marri v.
treatments supra, distinguished services; 41 C.J.S. consortium have 11; 21 A.L.R. We § note 1517. Husband and Wife Morey 58 as Keller, 85 N.W.2d 77 S.D. 'it in defined right growing relation out of the .marital “Consortium is a spouse ship. of either This term includes society, conjugal companionship, and assistance affections 589; Jacobs, Halm 37 S.D. other. Roberts v. A Wall, 64 im 268 N.W. strom S.D. any pairment an elements sustain action for such will the difference in In some cases alienation of affections.” diverg changes meaning may for the account definition or 'apparently opinions or their dif of the courts ence in ferent conclusions. Torts, E'd., Prosser, § the authоr
In Law 2d history of consortium as reviews follows: interest in his “The husband’s relation with recognition as a matter of her received wife first period a a to him as servant. Over of some services considerably something form as it took centuries given ¡this, than 'broader was name up Consortium said to be made ‘consortium.’ legal rights oif bundle of alliterative trio society services, sexual intercourse of the wife. To these elements the had modern law conjugal rights fourth, adlded that of affection. The four; of the husband extend to all and while it is seldom that'the defendant’s conduct interferes with nearly them, one of it now seems olear in all jurisdictions that such with one interference action. a foundation for the be sufficient as will beginning, no *7 services, The loss of essential at longer indispensable, element one and is now upon be based.” The referred elements other are than service sometimes marriage to as the sentimental or of the term elements of supra; Stamford, consortium v. L. itself. Marri v. R. Golden Paper Co., 1514; Greene 44 R.I. 21 A.L.R. A. Any rights wife, note 133 A.L.R. in favor of such by recognized early however, law, were to slow be yet protected slower to be or Blacbstone observes enforced. (1753) totally disregarded that the common law in his time wife) (the party the loss sustained “inferior” to family explanation relation. His of the doctrine stated thus:
“* * * property the inferior hath no kind of company, superior care, in the or assistance of the (husband) superior as the have held to in those inferior; antd, therefore, suf- inferior oan injury. fer no loss The or wife cannot recover dam- (another ages person) beating husband, her separate during she hath no interest in anything (emphasis her coverture.” 3 Bl.Oom. 142 matter parenthenses supplied); Torts, Burdick’s Law of Moberg supra. Ed., 289; § Scott, 4th attempted at, Some courts chafed off, to throw early prevented “bar common-law sinister” which a married being juris’ legal personality, woman from sui at least —a injuries early far so as her case, sue for to' her. One Westlake, Am.Rep. Westlake v. Ohio St. step 397, took wife, in this direction. It held that in her name, own i. band, could maintain an action consortium, for loss of society e., companionship the loss of the of her hus against wrongfully one who induced him to' abandon away. her her send The court reasoned that while early England, the regarded common law a husband and wife were (and husband) person yet one as that one was the they in the civil law administered ecclesiastical courts regarded persons were two distinct and the wife could jurisdiction, injuries, her courts had
have redressed in her which those in the latter name. As she could sue own conjugal rights, said, “the court recognized courts for restitution of rights respects were these the wife in giving injured. fact, that instead redressed when husband, consortium of her loss of the thing no spiritual itself, makes to her the courts restored reviewing Lynch principle After involved.” difference Knight, opinions the various of L. and the 9 H. “unsatisfactory judges, to the state the court referred rights (English) in reference common law aspect “Having shown the doubtful continued: wife” and this my object question law, now it will at common *8 gave doubts, either rise to those that the reasons that show never swept they State, or have been existed in this that away by legislation.” stating court had was one
After that there rights jurisdiction in and not two—ecclesi- Ohio of marital England, opinion in the then as and common law astical saying: defamation, “In of law Ohio on to the settled refers respect, therefore, of this never been the law State has this Wensley- Assuming Lord law.” the common with in adcord Lynch Knight, supra, ‘correct, to be statement dale’s opinion the state statutes to “see if this then turns to the has not been overthrown the common law of doctrine quoted legislation as the These statutes of State.” this including rights personal property, action, court read: “All may marriage, any belonging at her or which woman ** * during by gift her coverture have come or have personal rights, of a violation of her grown out * * *” * * * be and remain shall separate' property her party, must married her husband woman is a and “Where joined except her, when the action concerns with * * The Court then said: separate property legislation, effect, abolishes the com- “This * * * unity person wife, in husband mon law respect Consequently, least, under our in this at legislation, the wife has in the benefit which equal to that which consortium of the husband is If, the husband wife. has consortium law, maintain an at common the husband could wife, consortium action for the loss of the why, law, our I can see no under the wife reason can not loss of the maintain an action con- sortium it that it the 'husband. And if be said wife, con- 'loss of services in such stituted husband’s action gist say, cases, it that the it a sufficient answer to to' upon this rule of the common reasons law rested, to’ either never have ceased exist existed * * * in this state. right of the to 'the “Is the wife consortium * * * personal rights?
the husband one of her In state, nor uncondi- neither husband tionally rights by their con- surrenders summating marriage. the contract of On the con- trary, acquires personal legal well each as society conjugal other, for the loss separately.” of which either sue path of freedom fetters, from common-law some- (Nash times called “shackles” of the common law Co., Mobile & R. 676) O. 149 Miss. 116 So. 59 A.L.R. opinion which this charted was not without its dif- *9 judges declaring ficulties. Two it, dissented from that the quoted statutes did not create a cause of action none where Lynch existed before and under the common law the Knight Lords, decision in the House of there was no cause of action. by logic majority opinion However, 1894 the of this was Supreme
sufficient for Iowa Court under similar statutes judgment to affirm an alienation of affections in favor of against parents. a wife Iowa had her Price, husband’s Price v. 60 N.W. 29 L.R.A. 150. There the trial court
charged jury the if that the wife was entitled to recover any, 'loss, “for sustained, love, she has affection, companionship, support, society and of her De- husband.” right fendants insisted that the wife had no of aсtion on by given grounds none was at common law and that such the statute of Iowa. The court said: country legislation tendency
“The .in this equal making law, husband and wife towards * * rights giving possessed other. to each the may provides that 2211 of the Code ‘a wife Section ** * wages and labor receive the her may prosecute law all actions at she and defend protection equity preservation rights property if as unmarried.’ Section may in all ‘A married woman 2562 is as follows: joining her husband sue and be sued cases without if she were unmar- her, to the extent with same * * highest character ried *’. Considerations of the companion- give right affection, to each the to the society wrong- ship, fully other, and whoever right deprives held either of right responsible. property when As it is valuable regarded husband, when it must be so due recovery by being true, the due to the wife. That loss, its as well as her of caused support, 2211 of authorized section the Code.” Boyce Draper, 1910, 2 25 Del. A.
Eliason v. 572, 575, of affections action con- an alienation a sue in her name of married woman sidered The court’s married act. that state’s woman’s 'alone under opin- rules, opinion the conflict the common-law reviews respеcting of these the effects acts ions that had arisen resulting from them. of cases enumerates four classes The court said: disputed that at common has never been
“It of the husband to have it law was society, of his affection, aid and comfort hold gave *10 also him wife, the law it is admitted that against right with one interfered of action who a alienating away by enticing right his wife and that Greenbank, Winsmore affection. from him her was, Wil'les, of such as it 577. The basis an right now, the or the loss of consortium society conjugal to the of husband his wife. right
“The of the wife consortium the recognized husband was likewise at common law as woman, existing right though an married a right of action for invasion denied her be- its cause of the of identity common-law doctrine person consequent trammels of its technical * * * procedure. right existed, Nevertheless her pronounced weight authority
“The in this country supports proposition right that the recognized the Consortium of the 'husband was at though common law as inherent wife, a not then enforceable in an action at law because of procedure policy conflict the rules of and the (Cases -supra.) of the times.
“Being opinion -of the common law gave legal tо a married woman to the con- husband, sortium o-f her, from but withheld legal coverture, because of her disabilities remedy by might right, which she enforce it necessary now becomes to ascertain what were they those disabilities whether have been re- right capable moved statute so as t-o make * * * of enforcement an action at law. opinion are “We therefore of that the -statute * * * woman, -a married removes * * * impediments- both of the common-law to- a
remedy character, an action tort of right of -the mairried woman to her husband’s capable consortium is that removal at oracemade provisions -of enforcement under remedial this act.” opinions speak
While the and results reached for them- selves, it that in observed these two the courts cases background relied on the historical on and leaned the married *11 n woman’s though, as the dissent decision, even act its a not create stated, “does their statute the Ohio case It remained before.” cause of where none existed action 1889, 1, 18 A. Card, 58 Conn. of Foot v. the decision 829, on behalf an action 6 L.R.A. to sustain the without affections for alienation of her husband’s any were defenses thе old common-law statute. All aid pled argued plaintiff were her husband wife and —that coplaintiff; living together that be .made and he should still complaint a cause in law state insufficient' was plaintiff, not could maintain action; a married woman that plaintiff because of with the husband -such wrongs supposed appear the misconduct; it not does plaintiff have suffered resulted defend is said to directly voluntary im from the husband’s acts but ant’s moral conduct for criminal conversation
and no action against a a married woman maintainable law at common it. The court con and no statute authorized woman married Lynch Knight, supra, v these, 3 Bl.Com.143and sidered with Much of this Connecticut case and sustained action. Goehring, quoted approval N.D. with in Rott v. tendency L.R.A.1916E, of modern where thought on and wife the common-law relation husband mentioned. flexibility
These decisions are an indication of the (Moberg supra) adapt Scott, common law itself changing nature of com- human affairs and that the England mon law time was not Blackstone’s place perchance common of a law different or time or varying in accord with conditions and circumstances people. Thompson supra. Andrews, of that its state and They recognition by legisla- were the courts of what the recognized by passing tures states had the various people married acts—what woman’s states had learned as a fact: servant status of the woman of changed, the Blackstone era had that she had become legal pesonality rights. legislature with its attendant Territory acknowledged of Dakota had trend for Chapter provided: 1887 it enacted Section which passage act, “From and woman after the of this ¡retain legal legal per- shall sonality same existence *12 marriage, marriage after as before and protection rights her shall all receive same of man; woman, as a as a which her husband does any injury reputation, and for sustained to her person, property, right, or natural character ¡in right appeal she have shall own same equity for name alone to the law or redress courts protection appeal and that her husband has to in ** alone; his own name Compiled This was in carried the 1887 as Laws Dakota § Code, 2600 of the Civil § 105 of substance as through Rev.Civil Code and Code codes other as SDC 14.0207. ¡show reported
While the cases slow tortuous struggle recognition legаl for and enforcement woman’s rights practically every state in the has union now extended right to the wife the to sue for alienation of affections and denying conversation, criminal latter Minnesota denying Lippman, and Maine both. The Con- Breakdown of (1930), supra, page Change 662; Holbrook, sortium at The (1923) Meaning supra, page Consortium, at 5. While this result as to alienation affections was achieved ¡it many years ago, in America until that it was England lie, first held that such an action would being supra, page Holbrook, verdict for the defendant. many reviews, various treatises and law with cases give complete picture,
cited therein a much more but we general right survey have made here a of husband damages resulting ,then to sue for his first from intentional negligent injury to his wife and the of a of action husband, injuries wife for so-called intentional to her caus- ing damages damages punitive, being compen- her, these satory, depending elements, or consortium some its on the basis of the action cause of and the forum. then How history, reasoning opinions does these and law apply to the at action bar? urges adoption of married our
Plaintiff bring a cause acts, and maintain now woman’s and cites of consortium of among for her loss following support VI, Art. as of her claim: others 20,§ Dakota Constitution: South every open, man
“All courts shall person property, or re- done him his an putation, remedy by law, due course of shall have justice, denial administered without delay.” single. Rights women: same of married 14.0207 SDC marriage after single have and retain “The wife shall rights property of a woman. all the civil *13 * * * person, reputation, injury or to 'her property, in name without she sue her own joining party plaintiff husband as grouping. It to this reads: should be added SDC 47.0301 “Every subject person has, the limitations to bodily by protection provided law, from of personal insult, restraint, de- or from from harm injury personal relations, famation, from to his and every person bound, contract, to without injuring any rights of others and such abstain injuring person property of to abstain from another.” substantially predecessor
These are the same sections Moberg supra; quoted Scott, 32, Sec. Civ.Code sections quoted present 1903, of there is similar our 47.0302. SDC held, in cases While such sections were effect court this liquor involving alienation affections sales of of drugs husband, that the wife had cause action consortium, which she could maintain in thе loss quoting Moberg sections, After courts. these court page page 427, Scott, 422, at 161 N.W. at 38 S.D. said: injuries
“It is clear therefore that the done to person, meaning one in above within Constitution, or harm section 'the section meaning suffered in within person, C.C., personal rights include to one’s that, injuries as well as So physical person. coverture, question 'present but for the fully warranted statute. But section (now coverture, 14.0207), disability C.C. SDC concerned, so far as the present action is was entire- * * * ly removed.
“Again, since the common-law disabilities of removed, the wife have been almost entirely such an action under may be present-day common-law, brought by the wife regardless statutory of other authority and regardless of what early common law was. (Emphasis supplied.) In Flander meyer v. Cooper, Ohio St. N.E.
L.R.A.,N.S., 360, 1913A, 983, Ann.Cas. the court said:
“The primary and most important question presented this record is whether a wife has common-law right of action against one wrong- who fully maliciously interferes with the marital re- lationship and deprives her of the society, com- panionship, and consortium of her husband. In the of a absence statute such authorizing recovery her *14 to maintain right this action rests on the wholly law, common the if common lаw not afford does action, her a right of then she cannot maintain this suit, and the demurrer to the petition should have been sustained. It is very clear that the originally common recognized law no such the right in wife.
By law, the primitive the only family member of the deemed to be unjustifiable harmed an disturb- ance of the family relation the head of the family. Blackstone Commentaries, in his vol. pp.
142, 143, says that these torts against directed peace tranquility of domestic are relations actionable when against committed the hus- In Lynch band. the case of Knight, H.L.Cas.
(Eng.) Wensieydaie Lord held that: re- ‘No covery joining husband be had without could money, suit, receive the
in who himself must remedy, and advance the wife’s would not would to an action to her recover in such allow might absurdity also husband involve the remembered, how- sue for such a cause.’ If must be ever, interpretation law, of common that this right an maintain with reference to the wife’s to theory upon character, this action of obtained merged personality her that the wife’s in husband’s, not then entitled to and that she was apart husband, property separate and from her hold bring in name. suit own and not authorized to her changed legal has Now the by merged status of the wife been longer legal 'legislation. personality is no Her By force of the that of her husband. in thereto, a in reference several statutes in this state longer any over the has dominion husband separate property no may wife, his and she maintain joining name, an her without hus- action in own her growing out band in the suit. The of action rights separate of an to is her her property an maintain action which she her the wife to con- own name. The personal rights. sortium is one of her of the husband principle the com- It therefore that the follows right mon law which allowed a n husband right, now, invasion of under changed view of the condition of affairs applies equal- present legal wife, her status ly It is with the husband. said Burdick change page Torts, Law of at that: ‘With this legal naturally change in 'her status came wrongs. judicial conception marital As name, she could an maintain action in her own sep- recovered would be her sole property, objections urged by arate one of the chief Wensleydale disappeared. Lord As the now re- law *15 cognized legal equality husband, her her with Black- upon superiority reasoning, stone’s one based party inferiority party and the -ofthe other longеr relation, marital had no the foundation statutory right -change even a A fiction.’ ex- cannot cept lawmaking power action of the -of a state.
But it the boast of the common law that: ‘It-s flexibility permits ready' adaptability to the its changing nature of human affairs.’ when- So society growth development ever either or statutory -change legal of th-e status of brought principles individual, he i-s- within the law, the common then it will afford to him the same- it relief that has theretofore afforded to others com- ing wrongs within reason of If the its rules. n thé principle wrongs are wife the same in as the why -ofthe-husibaindthere now no reason the -com- mon law should withhold from her the remedies page it affords t-o the husband. Hale on Torts on says: justice, why Tn natural no reason exists right against of the wife to maintain an action the seducer of h-erhusband should be coexten- against sive with his of action her seducer. weight tendency
The of authorities and the legislation strongly opinion.’ incline to the latter (3d Ed.) Cooley page says: ‘Upon on Torts principle equally in the wife is valuable property, t-oher as is that of the husband t-ohim. right being degree,
Her kind, the same as his in value, there would seem to-be no valid reason why deny the lаw should the redress * * * gi-st it to him. affords of the action is consortium, the loss of band’s which includes th-e-hus- ” society, affection and aid.’ Moberg complaint -surviving
In the case the alleged opium sold t-o defendant her husband -caus- ing deprived his illnes-sand death and this aid, her of his society, support, companionship, protection affection, claiming consortium; the defendant demurred want of suf- plaintiff’s facts t-o constitute ficient lack of a cause of action and capacity complaint. sue; this court sustained the *16 the of stated
This 32 of Code forbade—it Section the Civil rights personal then did not that the relations action, nor of include the same Blackstonian 1753 causes 47.0302, said: Court its of which this does 'successor SDC rights purport the not to assert that “Said does section 32 things those other than relation not forbid Goehring, supra. trial, After the mentioned.” Rott v. Accord: Moberg again Moberg court. the action was before this opinion Scott, 1919, 42 560. That S.D. 175 N.W. states: exemplary dam-
“Action to actual and recover by conjugal ages plaintiff’s Con- occasioned during period preceding sortium of illness plaintiff’s damages husband, result- and death of ing alleged death, were and death from his which sickness by unlaw- been defendant’s
to have caused fully, willfully, maliciously, knowingly furnish- and ing opium the deceased with commodities which * * * (evid- ingredient. ample was there was an ence) finding jury was warranted in from which year plaintiff’s husband, the last or more physical life, in a and mental condition of unfitting was his support, give aid, wife that him society, companionship en- to which she was * * * enjoyed titled, she thertofore and which had unlawfully, drug wrongfully, such was knowingly furnished the husband defendant.” exemplary complaint $5,000 $10,000 actual and asked jury plaintiff this court affirmed verdict recovery declaring $12,500, on or based wrongful act, of 1909 limited death Ch. Laws (now 37.22). recovery was: The basis of SDC upon present-day either common
“Therefore law, in view of discoverture stat- nearly ute, statutes, of other or because courts of exception Union, all states with Jersey, Maine, Wisconsin, and New sustain the bring right to action similar in wife’s an character complaint to this. For both we reasons sustain approve Moberg ruling of the trial court.” 431, page page Scott, 38 S.D. at at [64 supra *17 Wall, 467, In Holmstrom 424], v. 268 N.W. S.D. we said: Moberg-Scott very
“In the case this court clear- ly definitely of held that since the enactment removing disability coverture, the statute there exists a of
present day right’ ‘common-law the wife to maintain an for the loss of the action society, affection, husband’s This consortium. or right independent exists of statute.” Ball, 161, 482, 483, In Swanson v. 67 S.D. 290 N.W. we further said: appear
“It would thus court deter- this has quite precisely questions urged mined just instant case. The have decisions we refer- conclusively red to we believe establish the law in independent this instant case to the effect that any specific statute the wife has cause of action against anyone wrongfully interfering with mar- regradless relationship agency ital or instru- mentality employed to the loss.” inflict argues The defendant that as these three Dakota South they tort, cases involve a malicious and wilful are distin guished involving negligent from the case now before us majority attempt tort. The of the cases to make such distinc Although they right tion. allow a wife a of action for loss* affection, of consortium alienation criminal conver drugs liquor they deny sation and sale of to the husband the wife the of action where loss of consortium arises prior negligent person. from the acts of a third In fact Argonne App.D.C. Co., 57, case Hitaffer v. 87 U.S. 1366, 811, one F.2d 23 A.L.R.2d case had allowed 183 Hipp Dupont action. v. I. Co., such E. de Nemours & 182 Hipp 9, 318, 108 18 A.L.R. N.C. S.E. 873. Later the case Co., was overruled Hinnant v. Tide Power Water 189 reasoning 307, 126 A.L.R. 889. The N.C. S.E. 37 102 approved of the Hitaffer case have 'been
conclusions cases of Brown Ga.App. Georgia-Tennessee Coaches, Inc., Schmit, 24; Iowa Acuff v. 77 S.E.2d Transportation Com 272, pany 480; Missouri Pacific N.W.2d Reviews Miller, Ark. 299 S.W.2d subject appear 108; 23 U.Cin.L.Rev. of these eases and L.Rev. 634. 42 Iowa XVI Journal 335 and Ga.Bar usually . given The Hitaffer case summarized the reasons denying the wife the action as: (1) ¡injury indirect and so not wife is compensable;
(2) injuries consequential That her are too remote and capable measure; to be
(3) recognizes The common no law cause *18 sentimental elements consortium and loss so-called given the married no woman’s acts have wife new action; cause
(4) That no cause of of consortium loss showing was ever allowed in there no of the loss services; of some
(5) might recovery by There be a both husband and damage. the same Each of these reasons was discussed the Hitaffer case as U.S.App.D.C. [87 815]: 57, 183 F.2d follows “As to those authorities which that the hold injury compensable to the wife is not because it is simply indirect, we that if state that be so then it would likewise true in be the husband’s suit. But such is not the rule here. Invasion the consortium independent wrong dirеctly spouse is an to the so in- jured. The mere fact that loss of one or the may other of the elements thereof have been in- directly suit, redressed another’s does not make injury remaining any elements less direct. argument injuries
“The that the of which a wife complains consequential are too remote and fails place, for two reasons. In the first arewe committed negligence to the rule in cases that where sequence, natural and continual unbroken intervening injury produced cause, which, but an negligent occurred, the for the not have aiotwould wrongdoer liable. it no difference will be And makes particular whether or not that foresee- result was Secondly, able. there could if such a rule were valid distinguishing be no basis for by between an action a husband and one the wife. In both oases for the sentimental elements would be yet consequential; too remote and do not we n apply And, rule in the action. such a husband’s furthermore, there could be no reason for the allow- ance of an action for Criminalconversation or alien- ation of affections in cases where the husband con- obviously conduct, doned the wife’s there would disruption yet serviсes; be no under such circum- stances, it has sue been held that the husband the seducer. The same also true would in cases where it has been held that husband has a cause though living of action for criminal conversation apart from Here too no his wife. there could be showing In services. both cases the spouse’s consortium lies in the senti- mental area. just cited, the rationale of the
“Within cases recovery allowing a husband he cases where can *19 services, of show no loss lies the destruction of the authorities which hold that common re- law cognized no cause of action for the loss of the so- alone, elements of the consortium called sentimental which further refine the rule cases holding that an action for the loss of the sentimental be allowed unless there is a show- elements cannot ing loss of some material services. There is no judicial precedent rules, 'these and the allow- of the where no loss of material service ance action effectively destroys them. is shown similarly group appear “Another cases emphasis place principal on element of to negligent in in that in services these actions hold the consortium has no -cause vasions of wife legal husband, under a who is action because d-uty -support according in wife to his station to his tort, life, an element recovers his action for ability damages, any impairment of his of his obligation, perform the wife in and thus directly for the value of loss of recovers Any they Conclusion, reason, other consortium. recovery. husband, in a result double would hand, the other when the on is allowed injured, correspond because she is under no wife is already duty ing course, him. Of as we have pointed out, there is no foundation for the state predominant neg ment that factor involved ligence type element cases1 this of material accept For services. that reason we cannot their argument. There more to than the consortium Beyond spouse. mere services of the there are the so-called sentimental elements to which the wife remedy. has a for which there should be We agree, however, do that if the wife is allowed to recovery regard sue, there could be a double to the service element of if the hus consortium, recovery band’s is not -taken into account in measur ing the wife’s and we shall deal with problem hereinafter in more detail.” A few -courts have held that reason of the married giving woman’s acts benefits her own service the husband’s cause of action consortium -longer at common law no exists. Marri v. Stamford St. R. Co., L.R.A.,N.S., Conn. 78 A. negligence history There the court in a -case considered the development subject of the of the common on the law practical side, service, i.e., the material or and the senti conjugal side, mental relation and the effect of the so-called married woman’s acts thereon. The court stated: dealing “We are not now with the sentimental -side * * * conjugal are, however, relation. We *20 concerned with side union—with marital the more material side of the expressed terms represents practical in results statutes Con- The court concluded under of service.” equal they affecting women, that were married necticut saying: dignity before the law with their husbands question the law remains whether “The then say entitled and wife are that both husband shall to maintain consortium, when
an
for loss of
person
third
the hands of a
the other sustains at
resulting
physic-
injuries,
accidental,
impairment, or that neither can do
al
so.”
on
so. See
neither could do
comment
The court 'held
case,
hus-
30 Col.L.Rev. 666.
now allows a
this
Connecticut
expenses
restoration
band to recover
incurred in his wife’s
negligent injuries
the mainten-
from the
or for service in
family.
Costello,
v.
125 Conn.
ance
See Hansen
In v. Boston R. 205 Mass. Elevated ex allowed the husband recover N.E. penses court reasoning facts, of wife’s cure under statutes and theory opinion. similar to the Connecticut This Connecticut upon upon proposition is founded actions based negligent tort, services, e., role, material i. the servant’s predominant factor; act that as the married woman’s as from consideration so far has now removed factor action for loss the husband is Concerned his common-law holding longer no exists. In so these courts of consortium have overlooked or there more elements denied that are impairment services, consortium than a loss or action, such elements will an or that such services sustain are not those of a servant but of a wife makes the who inviting home cheerful and and ministers to the husband’s Riley, happiness. Tramway Denver Consolidated Co. Ry. App. 132, 59 P. &
Colo.
also Gainesville H. W.
See
City
Lacy,
269;
244, 24
86 Tex.
Selleck v.
Co.
S.W.
Janesville,
104 Wis.
See 30 666-667. Col.L.Rev. agree logical deny- appear We that there m> reasons ing recovery resulting to a wife a for loss of consortium negligent injury of her from the of husband. Prosser in Law p. says, “Obviously 704, Torts, 104, § 2d Ed. it can have history justification than that of or the no other fear of liability defendant, undue extension of or a an recovery by double damages.” for the wife and husband same We agree this extension of that is an common-law liabi- do liability. Moberg- lity; As we said in the this common-law statutory change legal case, the status of wife Stíoltt brought principles has her within the now commonlaw it will afford to her the same relief it thus has there- part tofore afforded husband. The action on the wife for loss of consortium of her husband as the result of his negligent injury problems regard will no create more recovery brought by dоuble than wil an action the husband far loss of consortium of his wife under the same circum- stances. recovery cry
This double has been heard before. In Richards, Rowe v. infra, it was made and answered (32 page 66, court page S.D. at 142 N.W. at 1069): (which L.R.A.1915E, “This doctrine there the court announced) ground has been on criticized it allows recovery injury. a double for the same The criticism is not warranted, however; for, while the in both cases is primarily by negligent act, caused the same two distinct therefrom, classes of result one favor of the injured party physical time, for loss of for mental and pain suffering, expenses surg- incurred medical and nursing, attendance, etc., ical other in favor of party, husband, wife, some third pecuniary heir, such as for such * * they may loss as have suffered See also Richards, Rowe v. L.R.A.1915E, 35 S.D. 151 N.W. damages. Whiting’s Judge double discussion claim) (the Guy recovery goes to 1619. back It double Livesey, supra. injured negligently the husband’s
When he is expenses incurred, damages his and are for medical other earning power suffering, he pain for the time of and n is support incapacitated, for his to and care he is out which deprivation right family of his for the and wife and during time; see no double of that we wife consortium his recovery damages for the loss of if the is allowed “society, companionship, conjugal and assistance affections other”, of sortium, elements of con the so-called' sentimental right. Morey supra. Keller, v.
to each has the for, right to, The wife does not and cannot recover lose support part of her of husband. SDC 14.0209.This claim. being daily place
Juries are values for asked similar pain in actions, suf- alienation of affection on fering, slight against gross negligence to balance miti- gate damages accordingly injury actions, on exemplary damages malice actions where allowable are and in other cases which are as difficult as case before up argument against us, so this Should not be set as a bar recovery. such It in- does not seem to be a deterrent to clusion these elements and estimation of their value permitted recovery when courts thereof in actions husband. develop That the conclusion a fruitful we reach will litigation objection field been has heard before as an many pronounc'ements of the law the courts. In Duffies Duffies, 1890, 76 Wis. 45 N.W. 8 L.R.A. Judge opinion right Orton, in an that denied a wife the to sue for the alienation affeсtions her husband stated that “This of action in the wife would be most litigation thought fruitful source be of” can yet concerning plight an anld earlier sentence may it, wife at common he law as viewed he said: “This grossly theory wrong, have been but such w-as the * common law of affections
Time saw this to suit for alienation supra, every Lippman, page- extended to state in the union. 664. If there abuse of similar domestic relations remedy legislatures may actions, or -curb it. Some act to page supra, Prosser, states have done so. recovery litigation
This fear of double or of fruitful may subject justified, proper for under instructions Transporta- courts,
to review the Missouri Pacific may Company supra, Miller, tion the former be eliminated controlled; as to the latter have seen no flood or such we
litigation Moberg after the Rather v. Scott decisions. paucity there has been a of them which indicate wrongful sobering they proscribe effect on the actions penalize. Plaintiff’s counsel informs us in briefs jury supra, Ball, the trial on -of Swanson v. returned a *23 plaintiff hardly verdict for of one dollar which is “fruitful litigation”. injury theory may The so-called intentional be offending party fallacious. In criminal conversation action the paramour of the unware marital status of her hardly could be held to in fact have malice or an intention liability yet Harper kind, James, fasten, is said to & supra, g, 8.3, § Restatement, Torts, 683, n. § 3 comment recovery by permitting and there -can be little said for a wilfully wife from a tort-feasor who struck or a hus- beat denying band by negligence. it when a more -serious is caused urges The defendant that if the wife i-s to be entitled resulting to a of action for loss -of consortium from negligent injury, legis- the husband’s a this is matter for the cry lature and not When alienation supra. the courts. too was the in 1890 This night Court denied of a wife for the affection of her D-uffies, husband. Duffies v. denying present-day We believe we would be co-m- right of action if mon-law we held that a wife cann-otrecover negligent injury. for loss consortium due to the husband’s legislature Thus the matter would be the denial wife’s action and not -allowancethereof. judicial legislation The -conclusion we reach is not as Transportation Company the dissent in the Missouri Pacific
109 Miller, v. judicial It deci supra, claims. declares law sion, just Guy Moberg in v. Livesey did Scott and 1920 and as each of the decisions was other place. declaration of the law at time аnd Brown v. Coaches, It Georgia-Tennessee supra. is consistent with what Scott, Moberg held in 38 S.D. L.R.A.1917D, 732, 37.1701, then here SDC C.C. § after set out. nearly
We have read vexing all the decisions on this question studiously reasoning, perhaps, considered their majority better both the put: arguments reasons and —'the dissenting opinions; great majority decisions result, contrary reach a some for reasons that do not to appeal the, us oirdo not to our state. apply opinions Some refer of sister so have holding, preferred cogent number states we J., reasoning large numbers. at Whiting, page 35 S.D. 1001; v. Schmit,
151 N.W. see Acutff deci supra. many are sions listed opinions here cited and in recent Atchison, Co., case of Deshotel v. Fe Ry. & Topeka Santa 1958, 50 Cal.2d 664. 328 P.2d reversing Cal.App, P.2d 357.
The question presented by plaintiff’s whether appeal or not the for loss of surviving damages can recover consortium resulting the death of her husband caused by the negligent acts of defendant’s decedent.
At common law no civil action could be maintained
for the
being brought
death of a human
about
*24
either
or
Baker
wrongful
negligence
act
of another.
Bolton,
493,
1033;
Richards,
v.
Camp.
Eng.Rep.
1
170
Rowe v.
Co.,
201,
1001;
35 S.D.
151
N.W.
Roster
Inter-State Power
521,
738;
Juul,
1,
58 S.D.
237 N.W.
Jensen v.
278
S.D.
6, 115 A.L.R.
In
N.W.
the Roster v. Inter-State Power
Co.,
521,
“Independent
[58
case we said
S.D.
Because of the harshness of the common-law stat- change England Camp- were enacted to it. In Lord utes adopted and in this state we what adopted bell’s Act was Supp. wrongful 37.22 is known as the death SDC statute. person injury provides aof or that whenever the death neglect wrongful as act, or default shall be caused an, injured party action to maintain would have entitled the damages respect not had if thereto death and recover damages. may brought action ensued, Such an action husband, and wife, or be for benefit of shall the exclusive them, then of children, neither of or if there be brought parents the name kin, next and shall be give jury may such of the executor or administrator. may they exceeding $20,000 as case injury resulting proportionate such death from think to all respectively persons such action for whose benefit to the brought. contending Apparently plaintiff she can present stat- under our constitution maintain her entirely independent or of the primarily law of the common utes wrongful her contention
death bases stаtute. She supra, Moberg upon argument case, and in brief v. Scott language particular attention to the our calls page page ,at 427, 161 at in 38 as found S.D. “Const, ‘Every provides: 6, § 20 art. said: we where property, person injury (person) him in his for an done man remedy by reputation of law.’ due course shall have or * * * 37.1701) (now provides: 2286, C.C., SDC Section ‘Every person act from the detriment unlawful who suffers person in fault or of another recover omission money, damages.’ compensation is called therefor in provides: loss or harm suffered ‘Detriment is a Section * * * person property.’ therefore that the It is clear in injuries meaning person, in his within the done to one Constitution, or harm and the loss the above section meaning person, section within suffered in rights injury as C.C., to one’s well include question injuries person. physical that, but for 'the So fully present stat- coverture, action is warranted ute.” page Moberg Scott, 42 at 175 N.W.
In S.D. pointed therein out that the decedent’s we *25 such, neglect by would as act, or default not caused That ensued. if death had not have entitled him to recover wrongful brought death under have been action could us as now before from the action This differs statute. complaint could allegations an action here show that of by plaintiff’s had if death husband have been maintained «ot ensued. may claiming apparently actions
Plaintiff brought husband, one under death of on the based be wrongful the loss statute and death other ever contem not believe that such was We do consortium. wrongful legislature adoption plated of the opinion an action are of the that where statute. We death remedy. brought statute, an exclusive under this it is be can plaintiff comparison con A of the actions which statutes, under our constitution tends is authorized wrongful further the intent death statute discloses and the receiving legislature. parties of these the benefits plaintiff in this action the same class. The are of actions beneficiary perhaps bene the chief sole be a wtouid wrongful ficiary brought death in an action under the give expressly jury permits to dam statute.This statute they proportionate ages think In Rowe injury. all L.R.A.1915E, 664, 666, Richards, 66, 142 S.D. Polley Judge speaking refers to the for the court growing out of of action of action distinction between cause growing 'injuries out of cause by negligence, person the first death accrues recovery injured during lifetime and includes certain noted, and is in favor there accrues latter usually party, next “some other the husband or wife and support, kin, to loss of means of and is limited society, plaintiff comfort, and care suffered necessarily recovery This would death decedent.” only, possible by of our version Lord and could virtue quoted. Campbell’s Act, Ch. Laws he thereafter recovery pecuniary which limited Ga., 1928, $10,000. 217 Ala. In v. Central Graham 286, 288, said: the court 117 So.
112 unquestionably the decisions settled
“It is notwithstanding the must court, that, of this injuries herself, the husband to sue for damages, compensatory maintain an action for injury, resulting therefrom, such not for but the society, the cost as the of her services loss * * * earing true, nursing her, is etc. This and produces injury although is death which the notwithstanding immediate, of action the wrongful is of the wife the death confined personal representative of sec- her under terms tion 5696 of Code of
“ injury death, resulted in if ‘But account, law, cannot, taken into at the common be ground aggravation or as an either as the of action recovery damages, be must husband’s injury intermediate the limited to the loss suffered (3d Ed.) Cooley p. Torts, on 470.” death.’ guide. appears to to this American adhere Colorado Naylor, limit 101 P.2d 353. A similar Ins. Colo. Co. Ry. approved Mageau damages v. Great No. ation Co., 652, L.R.A.,N.S., 103 Minn. 115 N.W. 511, 14 Ann. where the said: Cas. court entirely “It is that there can no re- clear covery by the for dam- husband in his own ages subsequent to the wife.” the death of Hyatt Harper Adams, James, 180; Accord: & 16 Mich. p. supra, Restatement, 637, note 10. This the rule in Damages: Torts, e, § Comment wife, resulting “In of death case may recover under the rule in this husband stated expense interests Section for harm to his injury For incurred between death. death, a result of the wife’s he sustained as wrongful recover, all,
must if at under a death statute.” recovery being limitation the husband’s
This of dam- ages resulting and death of his wife caused negligent tort-feasor, same limitation recovery applied like circum under should be to the wife’s Mageau v. not abate. The cause of does stances. action say Ry. supra. Perhaps it is incorrect Co., Great No. spouse’s re survives; of action the cause that the mains; action damages only question affected per involving spouse. an death of either While *27 living, injuries spouse it are manent to a where both wife, expectancy the husband and be that the life of both material, circumstances, would become other with that facts appeal. question presented Plaintiff’s this not is Supp. of action under SDC contentiоns of survival causes appears applicable. our It that are therefore not 33.0414-1 wrongful of the elements dam statute includes all death plain age the an action such as be included in could brings damages to her for due tiff now in her own name dupli legislature death; did not intend husband’s therefor this double dam cate recoveries result thereby ages prevented. are wrong point
The main
between the
difference
brings
plaintiff
ful death statute and the action whioh
now
in the amount
Much of the criticism of the
recoverable.
wrongful
springs
difference. It
death statutes
wrongful
that a
death statute is
a com
contended
never
recovery
wrongful
person
plete
of a
full
for the
death
where it
limits the amount recoverable. There is some
argument. However,
merit
said in Rowe v.
in this
we
supra,
Richards,
Kidd,
280,
41
and in Simons
73 S.D.
wrongful
840,
a
death statute created new cause
N.W.2d
our
specified
on behalf of
beneficiaries for
of action
resulting from the death of
these beneficiaries
decedent.
legis
law,
unknown to
“Since
was
common
impose
were free to
re
latures which created
upon
Harper
James,
Torts,
&
The Law of
strictions
it.”
present
prevents
$20,000
24. If the
§
limitation of
a full
complete recovery
wrongful
person,
of a
death
change
legislature
can
or abolish suoh limitation. Cf.
Gillins,
26,
Hall v.
13 Ill.2d
We do not believe conclusions counter Richards, 66, noticed. Rowe v. 32 S.D. 142 here to decisions 114 1069, widow could 664, L.R.A.1915E, that a held N.W. resulting damages own name maintain an action her negligent act; a caused death of her husband
from the L.R.A.1915E, Richards, N.W. Rowe v. S.D. judgment approved his administratrix a in favor negligence of Lord version under our on same based declaring Campbell’s of action. Act, a cause this to be new supra, Moberg case, sustained this court In Scott judgment complaint a actual on and then demurrer damages exemplary sued in own to widow who drugs wrongful husband; the first to her sale name for 998, L.R.A.1917D, opinion 422, 161 in 38 N.W. S.D. complaint quotes full, for loss it claims prior year period of more than one for the consortium opinion died; the husband second 1914 when March 559, is as if worded S.D. period death; have ex- we for the of illness and complaint *28 was in both and find amined briefs' cases appears changed it that action and so not amended or during only damages occurring life- was husband’s respect question in this time and raised decided in that action. or appealed from. find m error in orders
We apрeals affirmed. The in both No. 9704 and No. 9710are party. allowed to either No costs will be RENTTO, JJ., SMITH and concur. part. ROBERTS,
HANSON, J., J., P. dissent in Judge Presiding (dissenting part). HANSON, in portion opinion I to concur am unable in recognizes, separate creates, cause of action in a which the resulting negligent wife for loss of consortium injury of her husband. opinion contrary portion great
This authority. weight rejected, considered, It has been twenty-seven England. approved and in It has states been three Annotation in 23 states. See A.L.R.2d 1378 comprehensive supplemented discussion and collec- subject. tion of cases on this Moberg Wa'll,
The Scott, cases of v. v. Holmstrom directly wrongs Swanson v. Ball involve intentional disrupted relationship. the wife’s marital The husbands against wrongdoer therein had no cause of be- action participation wrongful Consequently cause of their act. question rec'overy there was no of double involved. The reasoning in those cases should not to' be extended include recovery resulting wife’s for loss of consortium from the negligent injury great majority of her husband. The of our courts have refused to do so. majority opinion proceeds assumption on the right
in South Dakota a husband has a cоmmon-law negligent loss of his consortium reason of the injury of his so, wife. If this were I would be inclined to agree majority opinion grant with the the same to the wife. It would be indefensible to one to allow recover and not However, theother. the law in Dakota South with respect husband’s recover has never been majority opinion declared or settled. The cities no South supporting assumption. Dakota case their The common law point of the several states on this is not or the same. settled deny Several states the husband’s of action. cause Lock Company, v. 155, wood Wilson H. Lee 144 Conn. 128 A.2d Bolger Railway 330; Co., Boston Elevated 205 Mass. Dry 389; Co., N.E. Blair v. Seitner Goods Mich. L.R.A.1915D,524; Helmstetler v. Duke Power
Co., 224
N.C.
32 S.E.2d
and Martin
United
Rys.
question
Co.,
Electric
71 R.I.
42 A.2d 897. The
Atchison,
has not been
settled
California. Deshotel v.
*29
Topeka
Railway Co.,
664,
&
Fe
Santa
50 Cal.2d
legal of -the disabilities status. common-law Wom- removed the enactment of our Married wife were legal equality. have en’s The husband and wife now Act. equal and com- Both have to our full access courts plete wrongs injuries. respective Thus redress of their upon foundation the husband’s cause ancient removed. No action for loss of consortium rested has been why party marriage remains either reason should duplicating the other. have a of action for cause This left ancient cause of action should be buried my past than In rather revived and extended to wife. opinion, legal effect of our Married Women’s Act was equalize legal wife, “to status husband deny any overlapping recovery on to each account injury.” Co., Duke other’s loss Helmstetler v. Power 613. N.C. S.E.2d ROBERTS, J., concurs. Respondent al.,
KRIER, et v. DICK’S LINOLEUM SHOP
Appellants (98 486) N.W.2d (File Opinion 15, 1959) No. filed October