*1 Stephan, 1960]
MONTGOMERY STEPHAN. Words and Phrases —Consortium. 1. fellowship. conjugal “Consortium” means Supreme Judges 2. Court. —Justice of justice, justice uot Supreme Court is to do The oath perpetuate error. Precedents—Equality 3. of Sexes. Courts — inequality upon assumption bygone Decisions founded present-day between the realities and sexes are unrelated ought permitted prescribe not to be a rule life where social, changed political, legal relations reforms have plane between the put sexes and woman and man equality. 4. Husband and Wife —Loss of Consortium —Action Wife. is; A against wife’s action a tort-feasor consortium an action for damages interest, to her own con- remote sequence of the tort-feasor’s to the husband. Recovery. 5. Same —Loss of Consortium —Double Recovery by plaintiff wife her against a tort-feasor, injured who for loss of consortium not be defeated on ground danger allowing a double re- covery to the husband. Consortium—Pleading. 6. Same — legal concept of “consortium” incapable of dismembership into material services and sentimental services, hence, there References for Points in Headnotes Jur, 26 Am Husband '1] '2, '4, and Wife 5.§ Jur, 14 Am 27 Am Courts 3] 5] 125. § Jur, Husband and Wife 514. §§ Wife’s of action for loss of consortium. ALR2d 1378. Jur, 27 Am '6] '7, Husband and Wife 512. § Jur, 27 Am Husband and Wife 604. § Jur, seq. Am Torts 45 et '8] TO] § Jur, Am27 Husband and Wife 514. § ;34 . any particular “element” allegation of loss of be no
need thereof. op Wipe. Disability Law 7. Same —Common *2 early the wife was inferior concept of common law that The damages to her capacity her for sue the husband separate repudiated. been interest has op Personality. Damages 8. —Interests physical protects personality well as interests of law integrity person. of the Family. Wipe op a Husband and —Protection 9. tort-feasor, negligent against a Belief extended to the wife family unit. intentional, protect as a social in order to Pleading. 10. Same —Loss of Consortium — alleged showing her husband sueh Wife facts who by reason of loss of as to result her consortium character held, pleaded a to have negligence of defendant tort-feasor cause of action. Kelly, JJ., dissenting. Dethmers, J., Carr C. and M.), (Carl Appeal Wayne; J. from Weideman (Docket No. Cal- 7, 1959. Submitted October February 48,134.) 1960. No. Decided endar against Montgomery by Shirley S. William Case solely damages of con- Stephan based for internal severe who suffered her husband sortium injuries Declara- in automobile collision. brain and tion appeals. Re- Plaintiff on motion. dismissed remanded. versed plaintiff. Weiner, L.
Louis Davidson, for defendant. F. Carl Curiae: Amicus counsel). (Arnold Gold, of M.
Gold&Earl (cid:127)35 brought J. The before us is Smith, driving tells us1 that the defendant was wife. She his doing car in a manner reckless so struck her husband’s car at ing time when her driv- completely care and caution, with was almost impact across an intersection. As result of such against car driven a tree, husband’s embed- ding the thereof in bark his head. He suffered brain may develop epilepsy, concussion into which he lost voluntary functioning kidneys, he sus- pelvis, puncture tained 4 fractures of the injuries. go and other abdomen, severe could "We injuries on for some time not. but need Some repaired, at a fashion, least after and others may not. suing
She is none these. Her directly of action cause equally involves a hurt to her, says, equally obvious, she disastrous, and *3 equally deserving protection of the law. She says, negligence in effect, that the of the defendant physical psycho- has reduced her husband to a and logical a wreck, mere shell of manhood, unable to
sleep, effectively, pain, unable to work in constant constantly, physically seared, worried weak, and enjoy unable to even normal social life. She asserts deprived that she society has been of her husband’s companionship, comfort, of his aid and and of conjugal normal affection. legal
The term for her asserted loss is that variously “consortium.” has been defined, some- enormously complex judges times followed the habit of terms as the
lawyers wqrd using of never may employed. be where One of the most careful of the studies of consortium, fact, attributes to pleading the redundancies of common-law much of get upon grant We the ease the lower court’s of defendant’s motion ground to dismiss the declaration it stated no cause Michigan of action under law. injustice prevalent
the confusion and field.2 this Actually, conjugal all consortium means fel- lowship.3 pleader (fol- But the at the common law lowing practice his in deeds, wills, contracts, what-not) alleged companionship, of love, the loss society, affection, comfort, sexual relations, services, dictionary dry. solace, and or and on until ran (since fellowship It does, indeed it is between man wife), things, embrace all of these and more. pleading But the verbosities of common-law not lead the court to absurdities, such should
as con- clusion, for instance, that consortium an eco- may nomic side, for loss which one recover, and recovery may side, sentimental for loss of which no spiritual parental be had.4 ofWhat side? The side? The carnal side? It would be reckless jus- semanticist who would assert able, that he was tifiably, place each of the various elements of conjugal fellowship sug- in one or the other of the gested pigeonholes, just as would be bold artist categorize who would assert that he could all spectrum pigeonholes, hues of the into 2 one marked “light,” may the other marked “dark.” efforts Such amusing judges mental exercises, but when seriously put grounds them forward as for decision, injustice absurdities will result and is bound to be done. us, then,
*4 The before wife seeks for her replied loss of consortium. To that, the trial this court speaking, legally she had not suffered loss. precedents it is that she comes to do, So us. The in- recovery. deny usually deed, it is for loss of said, consortium, recover but not the 068. ALR 1915D, 524, 3 Bouvier, [4] [2] Lippman, The Breakdown of See Golden v. R. L. Greene 1514). Ann Cas Law Cf. Dictionary (3d rev), Blair v. Seitner 1916C, 882). Paper Co., Consortium, Dry Consortium. Goods [44] Co., [30] RI 231 Columbia [184] Mich (116 L [304] A Rev 579, (LRA 651, [21] 37 I960] v. nothing wife. This is short of ridiculous. If one partners may marriage recover for loss of why may family consortium, not the other? If the empty, only hunger? They larder is together does one stood jointly they
at the altar and entered into conjugal relationship. They their com- assumed rights, responsibilities. duties, mensurate along Where, line, did it all become one-sided, grant recompense so that the law will one, theory that he has loss, suffered but not the other? precedents are venerable. Their
These chains rusty only but be moss-encrusted few longer they no or have held that control con- courts fine.5 again reach conflict that we divides Thus put for the Dean us, and precedent law, it, stable, Pound must be yet it cannot still. we to stand Were rule stability only
alone, were reason being, our we have trouble with would no this case. simply begone, tell woman to and to We would take her shattered husband with no need
her,
we
repulsive.
longer
sight
so
In
be affronted
Acuff
Div 769
NE2d
ruled
Also of
ALR2d
13 ALR
man,
tium —
Transportation
[37]
Georgia-Tennessee Coaches,
Harper
Rev
22
lumbia L Rev
de Nemours
(56
[5]
Comment in texts and
LMich
ALR
See
SE2d
1065; Holbrook,
NE
in Hinnant
Progress
Consortium as an “Interest”
v.
407);
Hitaffer
1366);
interest are the
Schmit,
1320)
306).
889);
(270
299) (evenly divided);
Rev
James, Torts,
&
a wife for
Bernhardt
651; Simeone,
Co.,
NYS
Cooney Moomaw,
Co.
Hoekstra
(dissenting opinion);
v.
1; Lippman,
so
we
vast
But
remain in
books.
dust
decision would
our
through
years
reproach
mouths
ahead,
to law
justice,
and conscience alike.
to
oath is to do
Our
perpetuate
error.
n
holding
Is the
in truth
denied,
the demand of the common law? If
so, and
authority
saying
vast amount of
thereof,
so
bears witness
day,
must,
there
one
have been reasons for
the rule, for,
us,
as Holme’s tells
the common law
grown by
process.6
has
an historical
period
The reasons,
we
then,
seek in the
time
origin.
in which the monstrous
had its
doctrine
status of the wife and mother at this time is made
periodical rulings’
clear in the
time.
She was
part
part
chattel,
servant. As
in a
we observed
concurring opinion
Sovereign
in an earlier case,
Sovereign,
Such mother’s with to logic follows, her children it the common erty with the relentless rights respecting prop that her law, her person generous. and her are no more She was his chattel. was his. The hers, wife, What was says nothing “has is not Bracton,9 which her hus They opinion put one, and, All were one band’s.” as personal property, it,0 he was that one. of her money, goods, every description, and chattels of be 1 upon marriage.* came his Since was “under she power husband,” of her it followed that she had “no having ofwill her own” and no will of her own could not enter into course, a contract.2 Of he was en to her in titled services as home he would be any employ. in to those lose them servant Should he through the acts of that another other must respond damages.3 But should husband be also, 7 Hunter, [9] [8] 1 Blackstone, Commentaries, [0] 3 Hyde Ball [2] Acuff [5] Casner & Bishop, Bracton, DeLegibus v. v. Ball, Introduction Scyssor, Schmit, Married Women Leach, [2] Sim 35 Cases Cro Jac 248 Iowa to Roman Law (Twiss (57 Eng (2 Cro) Property, p (1873 *433-*436. ed Rep 703). 1878), ed), [278] (9th § (78 283. 39. p 423. ed NW2d Eng 1934), p Rep 462) 30. 484). ; Guy See, solace, protection thus lose his
injured, she like maintain a suit for she, him, with equally might question In of what been said her loss? light have lawsuit we must have, To nonsensical. She, another. with, capable someone suing start in her action own any could not however, bring *4 was nonentity.* 5But this legal for she was name, by another injured if she were so not all. What duties? performing wifely incapable loss, recognizable suffered a legally Has the husband other to dam respond that he cause that might so law, from the common ages? answer is clear which it was He had. as is the based. theory upon It an to interfere actionable one trespass menial with of another’s servant.5 This the services term house, chattel, responding this “wife,” follow, also rendered services. would had follow, did husband theory her, grounded *7 a But could wrongdoer she his servant.6 she sue to him? A servant sue for the loss of injury for authority not. If Clearly services of master? it: is for Blackstone7 supplies needed reply, the in- be this: may which for reason “One care, company, in the property no hath kind ferior is held superior, superior assistance inferior; therefore and those have injury.” no loss or can suffer inferior took which the doctrine then, the soil This, is of wife to root; abject subservience as a nonexistence, degraded position her legal Livesey, History of 651, 653. Marys’s [4] 7 Blackstone, Commentaries, *142, *143. [5] [1] See Hodsoll v. Blackstone, Lippman, The Breakdown Case, Cro Jac English 9 Co Stallebrass, Commentaries, (2 Law Rep Cro) (2d 111b, [501] ed Ad & E 301 113a 1937), pp (79 Eng Rep 428); *442. (77 Eng Rep 895, 898, 899). Consortium, (113 430. Eng 30 Columbia Rep [8] Holdsworth, A 429) ; Robert L Rev combination vessel, chattel, and household drudge whose obedience might be enforced by personal chastisement. Such the case we need not being cite authority proposition the husband at the might law, common may today, the vast majority of jurisdictions, sue to or by his wife’s services, affection, companionship. But a wife may sue loss of consortium?
modern answer, as well as the ancient, is that she not. The abundance of the cases so holding ais monument to blind adherence to worn-out prece- dent, a stubborn, dogged refusal to recognize that, as Cardozo once wrote, “Social, political, and legal reforms changed [have] the relations between the sexes, and woman put and man a upon plane equality. Decisions founded assumption of a bygone inequality are unrelated to present-day realities, and not to ought permitted prescribe a rule of life.”8 attempt the manifold
Any
pursue
of
reasons
their
fered
modern courts for
refusals to
up
per
mit
the wife
her loss of consortium
takes us on
tour
similar
to that of Minos in
labyrinth of Daedalus. Each
path leads to
dead
end of
reasoning
logic. Thus it is said that the
injury suffered
the wife is too
remote
conse
quence of
act
defendant’s
to be made the
subject
an action.9 Yet
if
proximate
even
cause argument
valid,
questionable,
which is
Argonne
Hitaffer
Co., Inc., 87
DC 57
F2d
App
811, 23 ALR2d
to the
1366), injury
same interest has never been
too remote when the
regarded as
husband sues for
reciprocal
loss. See
ALR 1517.
said,
8 Cardozo,
*8
Law, pp 105,
The Growth of the
106.
Co.,
v. New York Central
H. R.
R.
203 Mass 278
9 Feneff
&
1024,
Rep 291),
NE
24 LRA NS
133 Am
St
relied
Dry
Co.,
Blair
Seitner
v.
Goods
(LRA 1915D, 524,
to merely sidesteps The wife is the issue. wife. This damages does suing her interest. She to support. recovery effort is Her of loss seek ror society. companionship loss of recover for paradox again before see the here we Moreover, (as up peculiar reasoning in that sets noted, wife) ob superable action to the obstacles completely jections the hus when immaterial deemed damage have interest. We band same to the sues respect problems just re it with noted respect to double it with Here we see moteness. per consistently recovery, been the husband has in Yet, of consortium. to recover for loss mitted within the are included sofar as material services concept they (and there is no doubt of consortium whole), part it cannot denied that form there is a of the recovery. danger allowing him a double thought danger, however, has never been suf This ficiently action for loss of the husband’s real bar all in addition to other elements of consortium, his damage. noted is not difficult The solution supra, Argonne simple Co., “it in matter to determine 65: Hitaffer con to the wife’s way exactly as those of sortium in the same are in a measured similar and sub husband any impairment thefefrom the value of tract duty support.”0 objection degree, in the cases to large aTo recovery for loss of consortium allowing wife at tiary and the elements “This is the time See rulings Cooney expenses to which damage matter which and instructions trial, Moomaw, if necessary, by limiting she has been to the F court Supp jury the wife’s may appropriately husband’s put in 451: through caring society and for him.” proper eviden- take care of affection to such *9 aspect directly indirectly consor- of or turns It just services. is that of material mentioned, tium action for loss of cause of wife’s often said allegation her of loss an must include consortium thereof, main- are cannot it, told, she for without we that since she It concluded action. is then tain her (who allegation of a ever heard this cannot make services?) suing her master servant replies element of serv- fall. If she that the ease must concept gist is consortium, of the she ice is not told that without nothing remains but sentiment recovery injuries permit the law not does alone. sentiment argument 2 fundamental thus made involves The concept of consortium, The first is that the errors. of dismembership capable conjugal fellowship, services. Is material and sentimental into the services well-kept carefully prepared meal home or the a {i.e., a of affection sentimental manifestation service) performance menial skilled service) (i.e., well- material ? Does the chore anything serv- trained know of sentimental child they dif- material Of Are ices? Of services? both? The of matter is ferent? Which is which? fact into its that the effort to break down consortium component parts more than a theoretician’s no counterpart boast, the modern to the medieval reso- angels lution of the number to dance on the able pin. requires an wisdom, ef- head frontery, greater far than to make ours differentia- they subtle, if, so within the realm indeed, tions are competence. of human objection error fundamental
The second (assuming make the we can do made is that described) law does differentiation theoretical aspect permit alone the sentimental not only glance us about need of consortium.- We actually actions is otherwise. law see that the '
for criminal conversation and alienation of affec- point. tions are in It is law well-established, struggle, gist even worth a counter actions is not the loss of conjugal rights.1 but the loss of services consequently, are, actions
Such husband,2 maintainable though for such even *10 longer living he was no with at his wife the significant time the occurred,3 and it is to note that in of one the field, earliest cases in this Guy Livesey (1619), (2 Cro) (79 Eng v. Cro Jac 501 428), Rep the loss suffered the for which lay, action of a was not of at services all but a loss company. The fact of the matter is there that predominant concept is no element in the of con- capable that sortium, consortium is not of subdivi- necessary sion, and that it is not that there be an allegation any particular of the loss of “element” thereof. urged by
Finally,
is
some that
the married
designed
acts,
to remove from them
women’s
degrading
their
demeaning
disabilities,
common-law
(in
cases)
implement
to
their
some
constitutional
guaranties,4
only
not aid
not
did
the
cause
wife’s
E.g.,
loss of services
DC 57
servant,
husband to recover
consortium
25.201).
servitium. Loss
eause
one
offense. Smith v.
recognized and
chester Street
Cooley,
3 Pierce v.
negligence
[2]
“The action
1 See,
Statutes
See
sexual
of these is
CL
of
Const
Torts
but
eg.,
action
1948,
rights.
included
F2d
nowhere is
ease,
Lockwood v.
Crisp,
Ry.,
(2d
itself was
some
superior
against
§§
discussed
811, 815-819,
of
not
ed), pp
the court said:
Hockenberry,
78 NH
551.301-551.311
art
In no
service as the
service,
States, Michigan among
required.
injuries
such
Ky
to
per quod
289,
8.§
266,
in eases
early
Lockwood,
any
wife's
but
[519]
[292]
[267]
statement
Hitaffer
other as
it also included
ease is there a
to his wife.
So
they
premise that the
concerned,
involve the
is
cases
upon the loss of
of consortium rests
spouse is now
services,
since neither
and,
material
may
other, neither
entitled to
services of
we
basis,
Such historical
maintain the action.7
questionable.
highly
ma-
The
to
seen,
have
only
may mean, services, whatever that
terial
or
Goods
[5]
No?,
See
Tobiassen
See
Co.,
Simeone,
4 St. Louis
Harker
an of consortium, as we have seen. In fact, puts as Prosser it, “The loss of ‘services’ anis out- poor worn fiction.”8 An historical is a basis basis for decision unless the conditions and of customs today parallel past so those of the that the reason so patently for the still rule obtains. This is not unnecessary. the case that discussion is judi- a of matter sound remitted, then, are to be reached We light policy, in cial to of a decision society today’s solution the current common-law comparable problems. of in Discussion the issue unanimity at those terms least not result but it will be conducted a rational, understandable, metaphysical basis, realm of fictions. We ultimately every come, then, case, as we must un- less we we are to to fictions, are continue to utilize or unless
dispose point on a of the case narrow procedure pleading, balancing or interests. deprived On the one hand a wife we have of the af- companionship, fection of her husband, so- his ciety, possibly deprived opportunity even daughters. bear sons and other, have On we liability whose defendant, because his act must duty respect involve the violation of care with to it, and, whose furthermore, liabilities as a result negligent of his act must have some reasonable limi- analyzed, problem tation. So we see the not as a unique peculiar anomaly part historical but as a larger pattern, part clearly of a much aas of dis- long cernible movement in the law. We have since passed the time when the function of the law “was keep peace by regulating preventing pri- only required [which] war vate per- deal with disputes possession sonal violence and with over *12 property.”9 recognize pro- We now that “the law personality, physical of tects interests as well as the 8 Prosser, (2d ed), 104, Torts at 704. § 9 Pound, An Introduction to .the Philosophy Law, of the p 241-. I960] 47 v. integrity person.” of the Stewart Rudner, v. 349 Harvey, 459, 467; Mich Dawson & Case's on Con- tracts and Contract Remedies. In fact we have seen, within onr lifetimes, own the extension of the law’s protection thought to areas once too obscure for recognition, ephemeral, rights thought vague, once too too intangible capable legal
too
to be
legislative
measurement. Without
intervention, as
part,
growth
indeed,
the normal and traditional
right
privacy
common law a
has been ac-
protection,0
corded
as well as the
of a child
injuries
prior
to recover
sustained
birth.1 We need not elaborate. The standard trea-
many
on
examples.
tises
torts will furnish
additional
steps
halting
equally
The law
moves
and not
proceeds
simpler
all fronts.
from the
cases,
infringements,
such as
difficult.
intentional
to those more
respect
done with
So has
the interest
known as consortium. The husband’s action, in the
permitted
cases,
earliest
for loss of consortium
injury.2
due to an intentional
This was
first
stage
recovery.
At a later date the action was
stage recovery
injury
extended to
second
for an
negligently
G-enerallyspeaking,
rights
inflicted.3
respects
wife,
her cause of action for loss
of her husband’s consortium, are still in what we
stage
recovery.”
referred
above as “the first
today perhaps
can
She
recover for loss of consor-
maliciously
tium where the defendant acted
or in-
every person,
reputation,
justice
NE2d
Constitution
669).
508).
2 Guy
1 See Williams v. Marion
Professional
Pallas v.
See cases
without denial or
administered Livesey,
shall
Crowley,
(1851) providing
ALR2d
cited
Credit
have
an
Cro
1051),
Milner
Bureau, Inc.,
remedy by
Hoekstra v.
Jac
Rapid Transit,
(2
relying upon
done him in
Cro)
& Co.,
that “all
due
Helg
do violence
our
convictions and our
ciples.
reject
applicability..
We
old
their
The reasons
longer obtaining,
rule no
falls
the rule
with it. The obstacles to the wife’s action were
judge-invented
they
judge-
and
are herewith
destroyed. We conclude that the
wife before us
pleaded a cause of action.
Dry
far
So
as Blair
Co.,
v. Seitner
Goods
184Mich
(LRA
882),
524,
1915D,
Ann Cas 1916C,
and
Bushouse,
Harker
Black, Smith, J. with (dissenting). is an This
Carr, J. seeking’ for loss to recover married woman injuries resulting sustained from of consortium The accident. declara- in an automobile her husband February afternoon in the forth that tion filed set Montgomery, was Robert said easterly on driving in an direction an automobile City, city at of Garden Bock street Stephan operating a was the defendant same time southerly direction Helen motor vehicle city, the intersection of' that at in said street came in contact as a result vehicles streets very plaintiff’s husband serious of which sustained alleged injuries. pleading physical further proximate negligence sole defendant’s cause *15 by reason and that thereof accident, the plaintiff had:
“(a) consortium and invasion a loss of Suffered consortium; deprived “(b) aid, of her husband’s assist- Was enjoyment, conjugal love, af- ance, relations, sexual society, companionship, felicity, advice,, fection, co-operation, comfort, service; mutual counsel, “(c) required extraordinary, Has been render very difficult services to her unusual and she will be required do in the future.” so denying
Defendant to the filed answer declaration part liability stating his and further therein that on subsequently he move to the would dismiss declara- alleging filed, tion. motion as may Such the basis therefor that “neither husband nor wife for recover in
the loss consortium this circuit State.” matter the motion on granted the judge hearing the law in State of present that the theory the permit does damages in plaintiff’s declaration. It on the basis asserted in the pointed out-by opinion judge was further him that had also by plaintiff’s filed husband insti- for in damages against tuted suit defendant Wayne county, circuit court based the acci- dent which case was then No question, pending. is to the in this raised as situation question respect. Plaintiff has from the appealed order dismis- No claim sal. is made the circuit inwas judge error as to law present conclusion of this but is State, this to declare that the urged Court rule heretofore observed no uniformly should longer followed and that an damages impairment of consortium may be maintained by spouse. either It is conceded that au- weight thority country to the opposed course that counsel for appellant would have this Court pursue judicial action. It by also conceded that under the common England law of a married woman could not maintain an action of this character. is in substance under argued certain'alleged “modern trends” to recover based on grounds here asserted allowed, should be and that such result brought should be by judicial about ac- tion rather than enactment of stat- enabling utes legislature State. With view arewe unable to agree.
In the case of Blair v. Seitner Dry Co., Goods (LRA Mich Ann 1915D, 524, 1916C, Cas 882), it was declared that:
“For loss of consortium, of the undefined and in- definable either influence of in re- spouse family *16 lation, and the pleasure the neither relationship, may recover.” Michigan Reports. 359 quoted approval from v. with Tbe Court Feneff 278, 203 Mass Co., & H. R. R. York Central
New Rep Am 1024, 24 LRA 436, 437, NE NS St 291), as follows: brought attention, to our has been “No case none, have found we examination an extended after in has alone of consortium a loss an action which merely of an because maintained
been spouse, other person for which of the other full com- recover, entitled recovered, is only effect pensation name, in his own when through plaintiff’s right physical that, of consortium the the companionship disability other, or mental satisfactory than and valuable less injury.” before the prior decision commented on The also Court Gregory Mich Co., 181 Motor Car Oakland in in counsel been directed to which attention has the instant case. prior scope and effect such
The light in of the sub considered decision must be holding sequent in the Blair Case comments. Bushouse, Mich in Harker v. was followed where it nor wife that neither husband stated the loss of consortium. recover in State for this Bugbee 485. Fowle, Mich See, also, recognized has not It will be noted this State right spouse an action of either to maintain jurisdic- In some for loss of consortium. possessed recognized right as tions such by has been wife denied the husband but it has been sounding part in her common- for various reasons failure of affirmative disabilities, law pursue granting legislative to her remedy. comparatively de- In certain recent as such differentiation has been criticized cisions discriminatory. far is concerned So denying discrimination, sex, there is no recovery based for loss consortium. The established *17 applicable rule is to the husband as well as to the wife. Argonne In App Co., Inc., 87 DC 57 Hitaffer
(183 1366), F2d by ALR2d cited and relied on appellant, appeals the court of of the District of recognized unanimity authority Columbia denying of right recovery damages wife the of for loss of consortium, but declined to follow for length opinion. reasons set forth at some in the It recognized was, however, that in situations where the brings husband damages and recovers and the wife also sues and recovers for loss of consortium may recovery respect there abe double with to the so- called “service element” of consortium. It is inter esting to note that in the Case the husband Hitaffer compensation injuries had received for his under applicable compensation workmen’s statute. opinion rejected recog court in its claims by many of nized courts last resort in States to the negligence damages payable effect that in cases are injured person consequences to the the for the direct of wrong, that the to the wife is indirect, incapable remote, and of measurement, the com recognized right mon law no of action based on the so-called sentimental of elements consortium, supported by while the wife is entitled to be the hus damages impairment band his earning ability respect, includes her losses this and that she not maintain an action on the ground loss services. The Case is re Hitaffer ported in 23 ALR2d 1366, where it is followed a somewhat extensive annotation, 23 ALR2d indicating legal throughout situation coun try. opinion It ques followed, was and the on the quoted Georgia- tion at full, issue in Brown v. (77 App Coaches, Inc., Tennessee 24). 88 Ga SE2d expressly Georgia held, however, right court that recover for the husband’s Michigan Reports: .359 belonged capacity earning eárnings and pointed out that primarily It was further to him. pre- Georgia had appellate in the court State ho right viously for loss to recover denied of consortium. supreme of Arkansas court decision
In a 4-to-3 Transportation Miller, 227 Co. v. in Missouri Pacific 41), upheld a wife SW2d Ark 351 to recover *18 damages the hus consortium, for loss of having for in his also recovered band juries. to court dissented as members of the Three maintain action. It was the the pointed of the wife no law of the in the dissents that State
out that if it should be and action, an authorized such recognized lay legislature remedy and with the the opinion in his McFaddin not with the court. Justice 368) (p : as follows the situation summarized n recovering agree to Mrs. Miller’s “I cannot no in Arkansas We have statute loss of consortium. recovery. majority allowing cedes con The for such judge-made proceeding law under that the Argonne App Inc., Co., v. 87 in the of case Hitaffer 1366). (183 the 811, ALR2d Until 57 F2d 23 DC legislature passes allowing Arkansas statute of agree consor I to the consortium, then cannot Judge majority opinion. portion Holt the tium gone in and dissent, the matter in his into detail I in conclusions.” concur justices dissenting, supreme Iowa, court reasoning Case the also followed Hitaffer (78 480). In NW2d Schmit, 248 Iowa Acuff apparently majority opinion taken the view was an action could maintain such that the husband argument no discrimi that there should he that the persuasive. In that was the sexes nation as between damages, the action started suit case husband making apparently of a being the majority recognized set on dismissed opinion of the tlement. The position against weight authority that the of tlie 5 justices therein. concurring was pointed out (p behalf of 284) the 4 justices dissenting that while were there decisions in a limited number jurisdictions supporting view the majority court, there were more than 50 cases through- out the country holding the contrary. The dis- senting opinion emphasized the distinction between cases an involving intentional invasion of conjugal rights, as actions for damages for alienation of affections, criminal conversation, and sale illegal of liquors or drugs, and negligence cases. It was further stated that numerous cases involving question, decided after in the holding Eitaffer Case had declined to follow the holding line in said reasoning case.
In Nickel v. Hardware Mutual Casualty Company, 205), Wis 647 NW2d decided in May, 1955, court of supreme Wisconsin refused follow Case, decision commenting Eitaffer prior that decision only jurisdiction (North one Carolina) conclusion, had reached the same in a (Hinnant later decision v. Tidewater Power *19 Co., 189 NC 120 ALR 307, SE 37 889]), [126 prior the case had been overruled. It was that pointed out the court in appeals Seymour the 7th circuit 168, Co., Union News 217 F2d ap and the court of peals of the 9th circuit in States, Filice v. United F2d had followed the rule majority rather the than of the court of holding appeals of the Dis trict of Columbia. The Wisconsin court further dis cussed statutes relating to the rights married wo men, Verdigris Howard v. citing Electric Co- Valley Operative, Okla P2d 784). Comment was made on the fact the statute Oklahoma was broad in its insofar as the provisions rights married women were concerned, but in denying wife to recover plaintiff damages based supreme consortium the court
loss of State 508): opinion (p in had said- its generally “It that a held wife can recover dam- ages arising wrong of an intentional out done to marriage from a husband, or direct attack relationship. authority plain- But, there is no argument damages tiff’s that wife can recover aris- ing third injuries out of husband occasioned party’s negligence. multitude decisions question precludes wherein this has been considered principle underlying citation and discussion. The to tional be noted all the cases is that whatever addi- rights may gen- have been extended women erally emancipation under the statutes, so-called married women’s acts, do not confer statutes right upon permits recovery a new which wife allegedly injuries resulting negligent for loss to her from since no new cause of action was thereby.” created
Summarizing position, the its court Wisconsin used following significant 653): language (pp given by have been “Various reasons courts rejection of claims of this nature. To for their the most in double us permit appealing is that to would result recovery to the husband and wife for the injury. In husband’s he is entitled same compensation injuries for all to recover full he incapacitated, including being sustained, that for inability protect, for, to care and associate with from the If his wife. she were authorized recover wrongdoer, she sus- same injuries for the tained same which her husband recovery pre- out of which he recover support her, their sumed care for opinion legislature double, would be never intended. The settlement of a husband’s which our injuries personal resulting negli- claim for from always recognized gent act of another has been *20 closing right incident. main- this State as the an tain action of this kind is at least so doubtful policy that the court should not confer it. Matters of are involved. Such matters should be submitted to legislature prov- the ince it is whose function and exclusive consider them.” the noted, the court in its decision in
As before upheld plaintiff Case Hitaffer although damages for of consortium recover compensation pertinent husband had under received provisions compensation of the workmen’s statute for the Spring In District of Columbia. Hartman v. Cold (77 Company,
Granite 247 Minn 515 NW2d 651), presented. a like situation The husband compensation had been awarded workmen’s benefits under the Minnesota statute, and thereafter plaintiff damages wife instituted suit for loss of consortium. On motion in the trial court sum- mary judgment was entered for the defendant. The supreme judgment. doing court affirmed In so (p 517) provision the court called attention to a compensation the workmen’s act of the State which liability declared that thereunder should exclusive liability employee, lieu of “other to such personal representative, surviving spouse, parents, dependents child or any children, or next of kin, or person other law entitled to recover at common or on otherwise account of such or death.” express was held provisions that, in view of the power adopt statute, the court was without contrary a rule any change thereto, and that in the through statute must come legis- about action lature rather than the courts.
Among
involving
question
other decisions
Company,
Lockwood v. Wilson H. Lee
harmed. The could also proceeds belong plaintiff alone or to the should declaring spouses. § 163.5, Code, to both Civ (Cf. personal person awarded married that injuries property person.) separate of such are objections respect with Some of the noted above equal apply to an with the wife force brought by claim but a husband’s one us, is not before need not whether and we determine such a claim should be allowed. Clarification stat would, ute as to both the husband the wife of determination of preferable piecemeal course, be * problems by judicial decision. legislature “The has not fit to the com- seen alter mon-law rule that cannot for the the wife recover resulting negligent loss of consortium from a any opinion to her husband, and we are of departure overwhelming weight of from the author- legisla- ity support of that rule should be left to tive action.” *23 subject general recognition on the rule
In § Torts, 695: Law, in Restatement of it is said recover from not entitled to “A woman is married against him for illness or by her husband conduct who, his tortious one bodily other liable to has become thereby any to of her marital harm caused harm, for expense providing any incurred or for interests medical for her husband. treatment “Comment: Although to recover a husband entitled is “a. any society and services and the loss of his wife’s expense of illness or as a result which he incurs by bodily conduct of to her the tortious harm caused recovery a under a not to another, wife is entitled nor has she is not, similar circumstances. wife been, ever entitled tbe services of her husband. deprived support Moreover, she not is by any against which she is entitled tort committed legally provide The husband still bound to him. support for and the her, tort-feasor liable to the power any earning which husband for may loss he may This himself recover, suffer. the husband permitted to and were his wife of recover for the loss support, a double would result. The society wife has a similar interest and sexual relations with her husband as he has in such rela- recognized tions with her. the law However, has not right against her to recover one who has caused by harm to such interests which is not in- conduct negligently tended to harm them. jured harm, who has in- One intentionally the husband, or has caused him by personally conduct directed toward him rather than toward the wife’s not liable interest, is to the wife. expenses. Merely a
“b. Medical she is because awife, married woman is not to recover for entitled expenses by for has incurred her medical treatment tortiously her husband from him who caused one bodily harm.”
By way quote following summarization, we pp § from Am Jur, Wife, 514, Husband and 115: right have, a wife virtue of stat- “Whatever removing re- a re- her common-law disabilities to
utes of consortium of as cover husband injuries person, a inflicted third does sult neg- by extend to loss of consortium caused mere ligent injury the absence of At least, inflicted husband. any expressly conferring a it, statute though wife, even able sue be sued as feme general sole, has no action, cause injuries negligent- rule, loss of consortium due ly inflicted her husband. has no such cause She preserving of action even all under statute to her *24 rights per- growing of action of her out violation from consortium resulting Her loss of rights. sonal indirect permit too remote and is negligence is therefor, hence, distinguishable it to recover from loss of consortium from a directly resulting en- wrongfully where her husband act, wrongful from Further- away or forced her. ticed, seduced, in a which the entitled, husband is more, damages through another’ injuries neg- suit for his sustained full for his supposed compensation ligence, are be compensation his wife has a bene- injuries, in which if fit, a permitted that the wife consequence with the for her of consortium re- separate recovery loss in injuries, is, effect, from such there double sulting recovery for the matter. same taken the married
“Where view is that under of action acts, women’s husband has no cause resulting negli- of consortium from or wrongful loss in wife, of his such of action gent injury a any cause is, in course, wife denied. Such of action right denied, where, wife has been even under however, acts, such it has recognized been where of action does such appear passed the husband been on or denied.” law in this rule of in the established Any change here at issue question to the with reference State of the all, legislature if come, by at should judicial impressed fiat. We are rather than California justice chief the comments sound. basically are court, quoted, above supreme opin- expressed are with the views in accord They text If damages writers. ions of other courts the establish- are to be allowed consortium properly legisla- action is ment of such cause of any in the Obviously making tive determination. specifical- must be the term “consortium” change for which dam- thereof ly and the incidents defined, Likewise, forth. be set allowed should ages may for computing method be a prescribed there should on each damages. Allowing *25 jury in result con- in would item the of discretion specu- sympathy and on and in verdicts based fusion may to a at least obviated, be lation. Such results large by legislative action. extent, considered creating action, and, likewise, of of causes policy abolishing questions which of thereof, involve may legislature in It noted should determine. be death act this connection that under the so-called (CL seq. § [Stat the State 691.581et Ann may Supp seq.]), damages § et Cum 27.711 causing negligently be recovered for or otherwise specified. They damages for death are are limited to pain suffering by damages medical, decedent, hospital expenses, funeral, and such other dam- ages may just as the trier of the facts deem fair and pecuniary injury resulting with reference to the from persons may the death to those who be entitled damages Obviously, when recovered. there no room injury of, based to, consortium. In plain- the instant case if the death negli- tiff’s husband had resulted from defendant’s gence, type brought of action that she has would lie. may legislature also be noted that the of the (CL § seq, State PA No 127 1948, 551.301et [Stat § Ann Rev seq.]), 25.191 et all abolished civil causes action for criminal conversation, se- duction, and also for alienation of affections unless designated the defendant is a close relative of the plaintiff’s spouse. In other words, actions for direct rights invasion affirmative means of con- formerly recognized, sortium, do not now exist under thought naturally the statute cited. The suggests itself that for this Court to decree that such an action brought, negligent be based on resulting conduct impairment rights of consortium, would in- legislative consistent with the action. The obvious questions public fact is that policy are involved, Michigan Reports. principles govern- with basic and in accordance leg- be left to thereof should ment the determination action. islative problem also a consideration Involved compen angles is the workmen’s
from its various Assuming situa that the law of the State.* sation tion where in cases in other States, it has arises, as employer negligence the to of an has resulted employee compensation been awarded an *26 may paid in statute, accordance with and other damages spouse permitted an action for to maintain be instances, In some consortium? case as under the involved the Minnesota statute specific provisions as construed cited, above be May barring Michigan it be said cause action. not, would effect? If we statute has like clearly plaintiff’s recover, have involved in regu legislative if a matter case, sustained in this rights. legal adjustment lation discussing detail, the situation in further Without problem calling for the exer- we think that the cise of one overwhelming legislative The determination. present concededly authority weight at the time opposed allowing to main- instant change should undertake tained. This Court rule law this State. the settled judgment affirmed, trial should be court to defendant. costs with with concurred J., J., Dethmers, C. Kelly, Carr, J. part case. the decision this no took J.,
Souris, Ann [*] CL Cum § Supp 411.1 § et 17.141 seq., et amended seq.). (Stat Ann Rev Stat