*1 Appellant, Joseph Amorite L. PAGE WINTER and Winter, Mary Respondents W.
(126 E. Columbia, Messrs. & Seigler Seigler, Appellant, *2 Nelson, Mullins, Grier & of Co- Scarborough, Messrs. lumbia, Respondents, 28, 1962.
June
Legge, Acting Justice. for loss this action to recover damages
Appellant brought from injuries alleged of consortium resulting personal inflicted her husband through negligent have been upon of an automobile owned one of respondents operation de- at the time the other. Respondents driven being that it stated no murred to the complaint upon ground under the laws of or existing cause of action recognized the dеmurrer. is from an order sustaining state. Appeal the wife for loss of consortium resulting Recovery by was mot misconduct of a third person from negligent Husband Jur., at common law. 27 Am. permitted Wife, S., 513, 514; 41 Husband Wife, C. § Sections J. 57, D. C. 87 (1950), App. v. Co. Argonne 404. Hitaffer court, 1366, ac- 23 A. L. R. F. (2d) 183 (2d) ad- of this rule and unanimous the existence knowledging in this country it in jurisdiction herence to every on it founded as unjust, it had been challenged, repudiated de-: That undesirable. demonstrably reasoning, specious the dis- forceful and argument against cisión is a appealing common law which negligencе rule of the criminatory loss of consortium to recover for cases one permits spouse to the other. It has been reviewed but denies that right its A have followed minority states. small the courts of many 518
doctrine; most refused do have so for the same reason our of it: that compels it is function of the rejection courts, make, legislature, or amend laws. repeal v. Ewell 61 Ripley (Fla. 1952), 420; So. Nickel (2d) Cf. v. Hardware Mutual Co. Casualty 269 Wis. (1955), 70 205; N. W. Coastal (2d) Tank Lines v. Canoles (1955), Atchison, 82; Md. 113 A. Deshotel (2d) v. T. & S. F. Co. R. 449; Cal. (1958), (2d) P. (2d) Smith United v. Construction Workers 271 Ala. (1960), 42, 122 So.
It is not for this court tо the common law repudiate rule because we think it may undesirable. illogical alter, do not We have “to repeal, modify, land, the law of the when change even plainly appears the law in force be may Fraternal Aid wrong.” O’Hagan *3 Union, 144 S. C. 57 A. L. R. S. 397. here the same
Appellant presses argument that the Co., made court v. Argonne viz.: supra, Hitaffer the wife to an maintain action such law, as this for loss of existed consortium at common to assert it due to the inability coverture; being disability and that the the Married Women’s Act passage Property remоved thus simply that disability, available to rendering her 'a that had existed. We always find ourselves unable to this contention. If such with had agree existed under the common law the wife could have maintained the action to the Married Women’s sim prior byAct Property v. joinder of the Best Fox ple husband. Samuel & Co. (Eng land, 2 K. B. as 1951), Coastal Tank Lines quoted Canoles, v. supra.
Since there has no been action in this state re- legislative matter, we must lating be governed policy the common which denies to the wife the to main- action, tain an based on for loss of negligence, consortium. is
“It often the function of the courts their judg- ments establish where public policy none on the But exists. overthrow the courts of exist- subject is another matter. That its establish- policy quite ing public decisional, from rather'than ment have resulted statu- may rooted, law, is in our Once tory, opinion, firmly immaterial. becomes in effect a rule of conduct or of such policy property within the state. In the exercise of self-re- proper judicial straint, the courts should leave it to the their peoрle, through in the elected General Assembly, representatives say not it should be revised or whether or discarded.” Rogers Co., 233 S. 106 E. C. Printing Florence Affirmed. Moss,
Taylor, C. and concur. J., J.., Lewis and dissent. JJ., Bussey,
Bussey, (dissenting). Justice
I I cannot concur regret opinion prepared by case, in this Mr. and as the issue Legge presented on Justice I is one of feel great importance, appeal obligated state my views thereabout. in this action that as a complaint alleges result of the willfulness and wantonness of the
gross negligence, defend- ants, the husband of the plaintiff seriously perma- him to disabled, be injured causing totally nently nature, husband’s of a incapacity as permanent a re- has been sult which plaintiff deprived consort- husband, ium his of her assistance and including aid in main- household has been taining supporting deprived *4 comfort, of his society, companionship af- husbandly fection, and his in the care and help their management children, three minor for which damages to consortium she seeks to recover. demurred Respondents to stated no complaint ground cause of upon ac- State, tion under the of this laws recognized existing here is from the order the demurrer. appeal sustaining wife, It is well settled this State that a in at least some instances, is entitled recover from an in- damages arising of her to the consortium her tentional violation hus- stated, band. the issue Simply raised this by appeal whether a has the tortious, wife to recover for the intentional, not though invasion the same right. is, course, It not make, the function of this court to laws, amend or that function repeal left to the being legisla- ture, I and wоuld not be a knowingly party usurpation of the this court. legislative by power before us is not question whether this court shall but whether the a legislate, complaint cause alleges of action under the law of the State of South existing Carolina. To state that there is merely neither a statute specific authoriz- nor a common law case ing, precedent allowing recovery this, a case such as is not at all determinative asserted, It is often without the question. citation of any common law of authority denied England to a wife in such a recovery case. No case has been cited and research on has not my found a part case from the courts which has even issue, English passed upon let it, other, or the alone decided one way whole or in part, until the decision in Best Samuel Fox & Co. (England, 2 K. B. which will hereinafter be more fully discussed.
A courts number of American have considered the pre- and, cise issue before us to the year it is prior clear that the of American the con- weight authority against here. Such tention American how- aрpellant authority, ever, is only at most to be persuasive authority weighed court, this if we need to considered resort to persuasive determine view, the issue herein. In authority we do my need to resort to and can well decide persuasive authority us on the issue before strictly law in existing South Carolina. we are without the
Admittedly, benefit of any precise pre- court, cedent laid down and we are without the benefit statute which any specifically grants prohibits wife a cause of action for the loss of constortium of her hus- *5 bаnd, under the facts and circumstances in the com- alleged plaint. conclusion,
In at a correct we have to consider arriving but the of the common only precedents principles Constitution, effect, if of our and statutes on the any, common law of and course the deci- England, previous all of these are sions of this court. When considered together, I but arrive at the conclusion that the cannot complaint help here cause of action under law of South existing states a Carolina, should been and that the demurrer have overruled. common law it is stated in 11 Am. defining Jur. 154: and
“It is the of rules system regulations principles our ideas and definitions judicial legal from which are is The common law not a codification exact derived. conduct, in- for human for the redress of inflexible rules on the it wrongs; contrary, or for protection against juries, broad and is the embodiment of unwritten comprehensive reason and an inmate natural sense of principles, inspired common consent for the and regulation justice, adopted of men. Its of the аffairs has development and government the social needs of the community been determined words, common it In other law the em- legal serves. sense. It is a enumera- comprehensive bodiment practical elastic to meet tion of the social de- sufficiently principles Its star has been the guiding always velopment people. its wrong, country rule of right principles fact, is in that there as well as in demonstrate a rem- theory, of common law all for capacity edy wrongs. growth to new conditions is one of its most admir- and adaptation It is constantly able features. expanding developing with civilization and the new conditions keeping advancing itself to the of society adapting gradual and progress trade, commerce, arts, inventions, and the needs of change Whenever an old rule is found country. unsuited to pres- unsound, ent conditions should be set aside and a rule *6 declared which is in with those conditions harmony meets demands of justice.” 1872, 146, In 1712 this State St. c. Sec. (Rev. of the common adopted law of in the principles England following languagе:
“All and of the common every law of where part England, the same is altered this act or inconsistent by with the Constitution, state, customs and laws of this is con- hereby tinued in full force and virtue within this state in the same manner as before the of this act.” adoption statute, court, this this in the case of State construing v. Charleston Co. 113 S. C. Bridge (1919), 657, said:
“* * * statute, the common law of force in making state, is in its nature. In the merely declaratory case of McDowel, cut v. She Tread. Const. is thus principle ** * Nott, stated ‘The first correctly by question J.: * * * this court is to be whether govеrned by principles * * * in of the common as settled As to the England. act of first our assembly, passed year point, says common law of shall be in as full force and England And, not, as in in this state even if it did I England. virtue other not know what law we should be by do for governed; is as much the law of this the common law as country I do not mean to that are say we bound by England. every the courts of made We have a England. decision ” common own law.’ our view take the middle nineteenth various century English During both constitutional and jurisdictions, statutory speaking commenced thе of married women emancipation provisions, them shackles the common imposed upon from the law husband and wife were one in the of the law eyes theory husband was the of the wife to the that the superior husand almost that the entirely extent dominant. of this idea rise in various emancipation novelty gave as to the extent of her many questions emam- jurisdictions even to this some cipation, day thereabout still questions is, arise. doubt as to extent of her Existing emancipation at least in for the rule and the responsible рart, variety therefor, reasons most given grew American up jurisdictions prior effect that wife could not loss of recover for consortium a case such as this. courts,
Like other this court had with difficulty these prob- lems and late and as as 1920 was questions, con- seriously tended a wife had no cause of action against hus- band for assault on the damages battery, theory *7 no such Prosser, action existed at common law. Prosser v. 45, court, 114 102 This however, S. C. S. E. 787. held that she such a action. did have cause of in some
Contrary reasoning jurisdictiоns, other whether a married woman has a cause ac- determining of state, tion under the law of this this court has always gone to and followed the basic the common principles and itself to has not allowed be because no case hamstrung could the cited courts as a be from English precise precedent. Un- from less-'we well established state, this depart policy we this under have to determine case of the principles com- state, modified and construed in mon law as rather than of the absence of the issue any precise precedent from upon England.
It is the boast and primary common law principle be no that there can without a wrong remedy. This court course, has, on occasions been called con- many upon a cause sider what constitutes of action. An just excellent is contained in case discussion of Holcombe v. Garland Denwiddie, 379, 881, & 162 S. C. 160 I S. E. from which quote:
“We will use brief and the authorities freely appellant’s there cited.
“What constitutes a cause of action? “ must, therefore, judicial action ‘Every involve the fоl- elements; a lowing primary right possessed by plaintiff
524 and a duty the de- corresponding primary devolving upon ; fendant a delict or done the defendant which con- wrong sisted in a breach such a remedial duty; primary in favor of the and a remedial plaintiff, duty resting delict, the defendant from this upon springing finally or relief itself. remedy “ action however ‘Every however complicated simple these elements, must contain essential elements. Of these combined, and the delict or duty primary wrong, term, constitute the cause action in the sense legal it is used in the and as codes several States.1 Pome 47, Remedies Code roy’s (4th Ed.) page § “ ‘The cause action claimed or the wrong hand, on suffered the one and the plaintiff duty Clinkscales, delict of defendant on the v. Hayes other.’ 9 Mutual, Ass’n, 450; etc. [441], S. C. v. Rodgers 17 S. C. 406-410; Rizer, Bank Columbia Nat. v. 153 S. C. [43], 150 E. A. L. R. 443.” S. recognition application foregoing principles
this court in the case of Messervy (in Messervy, S. C. held that a had a cause of action for the enticement of her husband which wrongful *8 comfort, her of his and aid. This society court re- deprived liеd on the case of Bennett v. Bennett part 116 (1889), 584, 17, Y. 23 N. N. E. 6 L. R. A. which the court said: consortium,
“The actual to the wife from loss of injury action, is basis of the is the same as the actual to the husband from that cause. His to the injury con- right of his wife is no than her society to the jugal greater right of her husband. to each the society Marriage gives conjugal comfort, in that Each is entitled to the same rights regard. and affection of the other. The of the companionship, rights other from the one and the obligations spring marriage character, contract, are mutual and attach to the husband husband, and to the wife as wife. interference with Any as wife, of the husband or of the is a these whether rights, 525 violation, not of natural but also of a only right, legal right, * * * out of the relation. As the arising marriage wrongs the wife are the same in and are caused acts of principle, by husband, the same nature as those of the should remedy be the same.”
The conclusion of this court in the
case that the
Messervy
husband,
wife had a
to the consortium her
and in
with the
common
law was entitled
keeping
principles
thereof, is
to the
authori-
protection
fully
by
supported many
In the case Eliason v.
ties.
Draper (Del.,
Boyce
A.
the court had the
following
say:
“The
of the wife to the consortium of the husband
was likewise
at common law as an
recognized
existing right
woman,
married
a
of action for
in-
though
its
vasion was denied her because of the common-law doctrine
and its
trammels of
identity
person
technical
consequent
existed,
Nevertheless
and its existence
procedure.
and enforced
was
ecclesiastical courts in
recognized
her for the restitution of
a suit
where in
conjugal rights,
than conduct which
defense
less
would be
nothing
sufficient
to a judicial
to entitle the
was a bar
respondent
separation
94;
Orme,
relief
3 Blac. Com.
to the
Orme
2 Ad-
sought.
M.,
382;
S.,
D
1357;
&
dams
Rep.
Bishop,
Eccl.
§§
Burrows, 2
T.
Burrows v.
& 303. ‘This
Swabey
recognition
common law of the fact that the loss of
consortium
wife, and that its
an
enforcement was her
injury
failure,
hand,
on the other
corresponding
right,
tort,
for the
is
remedy
her with a
defi-
legal
properly
provide
at common
of her status
branch
places
nitive
That the
on its
common-law
footing.
learning
proper
of legal
is,
decisions,
find a
under the
remedy
failed to
rather
courts
than a denial of its
existence. For
right,
recognition
be said that the
of common-law
history
procedure
it may
of substantive
remediless at first
the history
rights,
largely
*9
writ or
in the
lack of a suitable
precedent
Registrum
Brevium,
of the demand for
remedy
the
until
persistence
on the case as a
the action
trespass
general
developed
casu,
in
under the
consimili
provisions
statute
specific
II.’ Sims v. Sims
Westminster
N.
([79]
577]),
[Law
J.
[*] *- =K “The in this authority pronounced weight сountry that the to the consortium of proposition right supports the husband was at common law as a in- recognized right wife, in not then in herent enforceable an action though in because of the conflict the rules of at law procedure of the times.” policy course, the case an Messervy involved intentional Of is that this court has now but the point repeatedly wrong, comfort, that the has the to the society recognized her husband. v. Holloway Holloway, and aid of S. C. words, In other to con- which this court should and is a will legal right sоrtium The wife a legal wrong. having legal against protect of her husband is fully to the consortium entitled to unlawful invasion wrongful its against protection of whether the tortious invasion this regardless right, intentional the Messervy alleged case) thereof (as and wanton (as willful alleged case). is negligent, of the wife is as real just just The damage other, case as the manner of its in one as grave make any cannot differ- possibly logical invasion unlawful the nature of which ence, with respect damages except be recovered. might Prosser, contains an in- supra, of Prosser
The case discussion constitutional and and informative teresting married emancipation statutory provisions out that The court neither the pointed effected. women 1895, nor 1868, nor that of the statutes en- Constitution thereto, so words a married many gave acted pursuant sue”, but that the Code of “to Procedure woman power “remedies” for comprehensive in 1870 provided enacted redress of wrongs.
With of Code Procedure the court respect stressed the it defined an as actiоn a following; proceeding, other to redress amongst a things, private wrong (1952 10-8, ; Sections that an Code action shall be 10-9) prose- cuted the real in interest by Code 10- party Section (1952 ; and by necessary implication that a provided married woman sue. The court further might out pointed the 10-1 (now Code Section provision the 1952 which reads as Code) follows:
“The common rule of law that in statutes derogation that law to be are construed has no strictly to application this Title.”
The to court then went on “the say necessary infеrence a liberal not a strict by construction Code to Procedure enacted give every remedy her husband for she suffer at against any wrong might his It hands.” follows that a liberal construction of the Code of Procedure was a wife for give every remedy any wrong at the she suffer hands might any persons, just husband.
, in Not mentioned the Prosser case opinion is the of the 1870 Code Procedure (now, Sec. provision part, the 1952 section in Code) 10-13 of its en- original reads as follows: tirety Inconsistent Provisions Statutory
“Sec. 903. Repealed.— All .inconsistent with Code statutory provisions of Pro- are but shall not cedure revive a stat- repealed; repeal been or law which have or may ute abolished repealed hereby And all provisions repealed. action rights given be secured laws man- by existing may prosecuted this Code If a of Procedure. case shall arise provided by ner for in which an action the enforcement or of a protection or the redress of a cannot be right, prevention wrong, Procedure, had under this Code of heretofore in рractice use be so far as be may adopted may necessary prevent failure of justice.” that it section was the simply emphasizes foregoing the enactment of legislature by
intention of Code remedies the redress comprehensive Procedure provide all suffered married persons, including of private wrongs women. Union, Aid v. Fraternal
The case of 144 S. C. O'Hagan *11 397, 893, 84, A. R. relied re- by 141 S. E. 57 L. the upon Blease, is, Mr. cited in the of opinion and spondents Justice the view, at in but enunciated in all my point, principles of here the contention the rather appellant therein support the of the in that respondents. opinion contention than contains the following language: case in our to is no statute state the matter “There relating there has been no consideration.. Where under legislative action, look back to the common we must the princi- state, stated are of force in this the law there until of ples or modification has some thereof the repeal by been there body.” law-making in case facts there was no the of allegation any
Under of thе no of on the part plaintiff; allegation any legal right and no allegation on the viola- anyone, any duty part of a or the commission a tion Of legal wrong. legal course, not by the court could fiat judicial legislate the decision the and therein followed duty, or a principles law. To the we have here the contrary, the common legal husband, to of her the consortium the duty of the wife care; due and defendants to use the violation or inva- the plaintiff alleged negligent, sion these wanton conduct defendants. Under and willful circumstances, relief is strict with plaintiff keeping law; in the common with our con- keeping principles and stitutional statutory provisions, thoroughly keep- with decisions of this court. the prior ing other we decisions of courts If needed go better reasoned and more authority, consider persuasive our decision of other jurisdictions support opinions logical
529 here. Probably case from other leading jurisdictions Co., v. 57, Argonne 87 D. App. C. F. 183 Hitaffer 811 case, Since the decision of (2d) (1950). the opin- ion therein has been reviewed courts of states many a number of that case has jurisdictions followed. been the better Among reasoned and more deci- comprehensive sions are 82, the case of v. Hoekstra Helgeland, 78 S. D. 98 669, W.N. (2d) Missouri v. Transportation Co. Pacific Miller, 351, 227 Ark. 299 S. 41. W. Other decisions (2d) case Yonner following are: v. Adams (Del. Hitaffer 717; Moomaw, 167 A. 1961), v. Cooney C.,D. (2d) 109 448; F. Coaches, Brown v. Supp. Ga., Georgia-Tennessee 88 519, 24; Powell, 77 S. E. App. v. Gordy 95 (2d) Ga. App. 822, 313; E. Wilson, 99 S. v. Bailey 100 (2d) Ga. App. 405, 106; E.S. Dini v. Naiditch (2d) 20 Ill. (1960), 881; Schmit, v. (2d) N. (2d) 248 Iowa Acuff 480; 78 N. W. v. (2d) Lampe Lagomarcino-Grupe Co., 1; Iowa 100 W.N. (2d) Montgomery 359 Mich. 101 N. Stephаn, W. *12 true,
It is as out Mr. pointed quite Legge, Justice many have refused to jurisdictions follow the Hitaffer de- cision, but I do not with him as to the agree reason for their refusal. It seems to me that a majority jurisdictions which refuse to the the of Hitaffer recognize logic decision refused to do so for the have reason that such primarily the of would well established require overruling precedents in those when jurisdictions the courts during days were with the still wrestling question concerning degree of married women. At least some de- emancipation these cisions the absence of a firm recognize precedent from the view of the particular jurisdiction court be might At least several courts otherwise. have refused follow case for the reason that the husband primary has Hitaffer in those no jurisdictions recover the loss of con- and, therefore, his sortium of to extend to the wife a which the husband does not have would be anomalous. course, Of of the husband to recover is well estab- Line R. v. Atlantic Coast Cook
lished in this jurisdiction. 1144; R. 133 A. L. Co., 13 S. E. (2d) C. 196 S. Co., 402, 63 R. 218 S. C. Line v. Atlantic Coast Vernon basis for the was the primary holding Prior precedent Canoles, Lines Tank court Coastal the Maryland court from Best v. in which case the quoted A. (2d) Co., several view of the opinions Fox supra. & Samuel case, difficult to determine what just it is in the Best filed not allowed to held, the wife was except the court recover.
However, said case has been often mentioned and since not relied upon respondents, might is here strongly the same. The facts were that Mr. discuss to briefly be amiss invitee, the status of an Best, injured while occupying of the defendant and recovered damages. the negligence Best was rendered sexually his Mr. injuries As a result to recover for the Best sought damages and Mrs. impotent consortium, her claim based on the dam- solely being loss to, a result of the sexual of Mr. impotence her as arising ages element Best, damage being alleged. no other in three held that opinions, of Appeals, separate The Court recover on the that consortium is ground could the wife the wife had not lost it and that as a indivisible one whole, diversity opinion there was among аlthough she recover if she to whether could had lost three as jurists as a whole. of her husband the consortium the decision of Court of On from Appeals, appeal that the all should be appeal five Lords participating agreed *13 unanimous in their dismissed, were far from reasons but brief, clear that there is a difference it is why. opinion as to whether a woman may recover jurists among English husband, loss of consortium of her and in the event of a total case no farther than as a goes holding precedent for the elemеnt of Best could not recover consortium Mrs. lost, the factual circumstances there under alleged. It not be might amiss out that point no State in the ardent, Union has been more as a matter of public policy, institution, as an protecting marriage with all together of the and wife, duties of both reciprocal rights husband and than has the State of South Carolina. To the wife the deny to recover under the circumstances would not alleged be in with the keeping fundamental policies customs State, would, since the husband is allowed tо re- cover, to the wife deny equal of the law. protection stated, the has
Briefly a cause of action here alleged under the our law of State because has existing she the right to the consortium of her husband at common recogñized law court; under decisions of this previous the defend- care, ants had to exercise due duty being alleged there was a delict on the of the defendants part duty, all them liable for which are making damages natur- ally proximate consequence acts. alleged wrongful Sincе the with reference to the language complaint broad, sustained plaintiff is rather damages allegedly it should here be out that in an action pointed plaintiff for the loss the consortium of her impairment husband is not entitled recover element of any involv- damage her financial the financial of their ing support support elements, recoverable, if such are embodied children as action, within the husband’s cause and to contained allow therefor be to wife to recover would allow a double recovery. of the lower court should be
The decision reversed and remanded. the case