116 So. 100 | Miss. | 1928
Appellee challenged her right to recover by demurrer to the declaration, which was, by the trial court, sustained.
Appellant declining to plead further, final judgment was entered for appellee.
The sole question to be determined is the right of appellant to recover for loss of consortium, based upon facts as above set out. Appellant cites no authority in support of her contention, but invokes, by analogy, the doctrine enunciated in Brahan v.Meridian L. Ry. Co.,
"We think it is clear from the authorities that the husband may recover for such injuries as result in loss to him inflicted upon his wife even where the statutes allow the wife to recover for injuries to herself in her own name, as our statute does. Construing our statutes on husband and wife as a whole, we are satisfied that the plaintiff was entitled to recover for consortium, and that the court below erred in excluding from the jury this element of damages. We do not think the statute was intended to displace the husband as the head of the family, nor affect his rights to the domestic services which the wife renders, or would render but for her injuries."
Section 2185, Hemingway's 1927 Code (section 2051, Hemingway's 1917 Code; section 2517, Code of 1906), reads as follows: *830
"Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married."
At first, it would probably seem anomalous to hold that a husband may maintain such suit and a wife be denied an equal right. It is seldom, however, that we find a principle of law so universally settled and by authorities from jurisdictions with as liberal statutes emancipating women from common-law disabilities as our Code section, supra.
Our state was the first to lift womanhood from the shackles that bound her to many rigors of the common law. The statute quoted here did not create in the wife a new right of action for loss of consortium, which never existed at common law. It could have done so, but it did not. The husband had such right, and the legislation removing the disabilities of coverture left his right unimpaired.
Keeping in mind the source from which the wife acquires the right, rather than whether the right existed at all, we should have no difficulty in reconciling the apparent conflict of cases seemingly akin to the case at bar.
In Emerson v. Taylor, a well-reasoned case from Maryland Court of Appeals,
"A close examination of the adjudications discloses that these group themselves under several distinct heads; the differences of opinion arising, as was held in the case of Wolf v. Frank,
The right of the wife to sue in this sort of case, that is, for alienation of affections, is well recognized. It is a direct wrong to her. The case at bar cannot be so classified.
In 13 R.C.L. 1443, section 493, we find the following clear statement of the rule:
"In the United States it is the better view that though a wife is given the right to sue alone for injuries affecting her rights, and though she has such a legal right in the so-called `consortium' of her husband that she may have a right of action against a third person when such right is directly invaded, yet, in the case of a personal injury inflicted upon a husband by the negligent act of another, though such act indirectly results in the loss or impairment of her right of consortium, and the ability of the husband to support her, she cannot maintain an action therefor; the remedy for such wrong is to be redressed solely by an action by the husband to recover his damages; and the wrong to the wife which may be redressed by her action for loss of consortium or support is restricted to those which have a direct tendency to deprive the wife of her right in this respect."
We notice some of the cases in our sister states which have equally as liberal statutes as our own. The supreme court of New Jersey in Tobiassin v. Polley, 96 N.J. Law, 66, 114 A. 153, held as follows:
"The weight of authority to be gleaned from the reported cases in our sister states is that a wife cannot maintain an action in her own name for the loss of her husband's services, including the right of consortium, resulting from personal injury to him caused by the negligence of a stranger, and not the result of a malicious interference with the society, companionship, and right of consortium of her husband. It was so held in the following cases: Smith v. Nicholas Bldg. Co.,
In Kosciolek v. Portland R.L. P. Co.,
"This section does not confer upon the wife any new right of action. It only allows her admission to the courts as a suitor independent of her husband for the purpose of redressing the infringement of rights which she already had. It is only by virtue of statutes that any one has a chose in action not known to the common law."
In Cravens v. L. N.R. Co.,
"It is sufficient to say that it is settled by the decided weight of authority that, while the wife may recover for the loss of the consortium of her husband due to an intentional wrong or a direct attack on the marriage relation, as for the alienation of the husband's affections, and the like, . . . yet, in the absence of a statute conferring the right, no recovery can be had for the loss of consortium due merely to a negligent injury, and a married woman's act, giving her a right to hold separate property and to sue alone, confers no new right of action, but only the power to sue for the protection of rights which she already had."
The supreme court of New York, in Goldman v. Cohen, 30 Misc. Rep. 336, 63 N.Y.S. 459, in part said:
"Her loss is that which usually occurs to a wife from the illness of a husband, in the deprivation of support and consortium, and the need of her personal care for him during his sickness. No case is cited where the wife recovered upon such a claim, and the absence of precedent, where such demands might have been numerous, if sustained by the law, goes far to the belief that such negligence has never yet been embraced within the circle of causes of action recognized by law, beyond the *834 right given to the injured one, and its survival to the consort and next of kin in the event of his death."
The supreme court of Indiana in Brown v. Kistleman,
"In such cases, no question of negligence is involved. The recovery is for an injury intentionally inflicted, and is not limited to compensation, but may be for punitive damages as well. The question here involved has rarely been presented to courts of appeal, and, so far as we are able to discover, when presented, a recovery has been denied."
Numerous other cases announcing the same views could be reviewed, but it would protract this opinion unnecessarily.
Dealing with the same question are Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, from the supreme court of Missouri; Smith v. Nicholas Bldg. Co., supra; Nieberg v.Cohen,
"After diligent research, we have failed to find a single decision (apart from the intimation in Hipp v. E.I. Dupont deNemours Co., supra), which approves the wife's right to recover damages for the loss of consortium under the circumstances appearing in the instant case, and to sanction such right of recovery would be *835 tantamount to the recognition of a doctrine utterly at variance with the most enlightened judicial opinion prevailing in other jurisdictions."
This effectually destroys the Hipp case as a precedent, and places that court in accord with the overwhelming weight of authority.
We conclude that section 2185 of our Code did not create in the wife a new cause of action for damages, predicated upon injury to her husband who survives such injury, which injury might involve the wife's loss of consortium of her husband. She was denied the right to sue for such damages under the common law. Until the legislature speaks through further enactment, we conceive it to be our duty to follow what seems to be the universal rule.
The court below was not in error in sustaining appellee's demurrer.
The judgment of the court below will be affirmed.
Affirmed.