*1 Argued petition 23, 1964, October affirmed December rehearing January 19,1965 denied
ROSS v. CUTHBERT
397P. 2d 529 argued ap- Jolles, the cause for Bernard Portland, *2 pellant. Olsen, him the brief on were Franklin, With Brisay, Bennett & Des Portland. Bay, argued Bedingfield, Jr.,
James B. Coos respondent. cause for With him the brief were on Bedingfield, Bay. Bedingfield, Grant Coos & Chief and Justice, Before McAllister, Rossman, and O’Connell, Denecke, Goodwin Perry, Sloan, Justices.
ROSSMAN, J. by appeal plaintiff, Marjorie
This is an Ross, judgment from a on a defendant, based verdict damages for Robert Dean Cuthbert. Plaintiffs seeks injuries her loss as a result of inflicted of consortium through alleged negligence upon her husband operation defendant in the automobile. his August plaintiff’s about 10:00 6, On a.m., pickup driving stopped while truck, husband Bayshore Bay facing lane north on Drive in left Coos opportunity to make a and awaited an left turn into stopped, he was so his car station. While service struck from the rear defendant’s automobile being operated in the same and which was direction testimony lane of travel. The in the same is conflict- signalled ing plaintiff’s husband his as to whether stop. turn left or Plaintiff’s husband intention to upon signal give but relied brake a hand his did signal lights. based an indi- testified, He and light panel pickup cator on the dash in the cab of his signal did he his intention to make a left truck, signal turn. Defendant testified that he saw no stop signals an intention to turn or that if such they given coating were were hidden of mud lights pickup. which covered the tail and rear of the Visibility pickup stopped was clear. Defendant saw the forty forty-five yards in front himof when he was gas to the rear of it. He removed his foot from the pedal and slowed down. When defendant reached a point yards approximately ten rear pickup applied stop, he his brakes but was unable to and the two vehicles collided. sixty-three years age,
Plaintiff’s husband is prior provide to the time of the accident was able to society aid, and comfort to his wife in a normal fashion. In the accident the husband suffered a strain- ing of and (whip- the soft tissues of his neck *3 injury) pain, lash which resulted in soreness and expert limitation of motion. The record contains testi- mony plaintiff’s which indicates that husband has suf- permanent twenty per fered loss of cent of the func- tion of his neck and that an such affects the bodily general other activity functions in and sexual particular. in subsequent Plaintiff testified that to perform the accident her husband was unable to household chores and duties that he had before and participate couple’s that he was unable to mari- previously tal relations as he had done. complaint alleged negli- the defendant was
gent failing keep to in his vehicle under in control, failing proper to maintain a operating in lookout, his speed, following vehicle at an excessive in closely, too failing stop and in to or turn so as to avoid the acci- allegations dent. Defendant denied the alleged and 432 plaintiff’s husband was defense that
as an affirmative failing signal guilty signal lights failing keep and in his his intentions impos- and dirt which rendered them free from mud sible of observation. assigns the trial as error the order of
Plaintiff
overruling
separate
her demurrer to defendant’s
court
The issue is: does
affirmative defense.
answer and
spouse operate
contributory negligence of one
as
spouse’s
loss of con-
action for
a bar to the other
question
presented
precise
thus
sortium.
impression in our state.
of first
that a
has an action for loss of
It is clear
wife
and cf. ALE2d
108.010
23
86
1378,
consortium. OES
right
ATiE2d
action measured
and
Her
1184.
any
subject
in a
action
defenses available
husband’s
(1957),
harm. Ellis v. Fallert
redress of the same
(1955),
v.
205
283;
P2d
Smith
Smith
209 Or
307
406,
Kinney v. Southern
Co.
P2d 572;
287
286,
Or
Pacific
(1962),
All cases from have allowing husband’s or con wife’s unanimous proved tributory pleaded as spouse’s action for loss of consortium. other bar to the Honey (8 1894), Chicago, Q. B., Cir., and R. Co. v. 63 Laundry Co., v. Reliance 42; 26 LRA Callies Fed 39, 41 Husband 198; see CJS 895, Wis 206FW 376, 188 401(e); § Am 108, and 27 Jur Husband and and Wife, § cited Eestatement of therein; and cases Wife, § the other commentators hand, 494. On Torts equally text writers have been unanimous and modern reasoning condemning and result reached *4 p. 2 ed., 914; 3rd Prosser, Torts, 1964, 1, courts. Harper Law of Torts, 640, The Gil James, 1278; Negligence, Imputed 1 E. 1921, Wis. L. 193, 203, more,
433 Gregory, case Pa L R 211; 80 U note, 1932, 1128,1130; Responsibility Contributory Negligence, Vicarious 41 Tale L. J. 1932, 831; case 13 note, 1933, B.U.L.R. Contributory Gregory, Negligence 725; of Plain- tiff’s wife or in an Action for child Loss of Services, Imputed 2 Chi. L.R. etc., 173; James, U. 1935, Con- tributory Negligence, L. 1954, 14 La. R. 340, 353; Imputed Contributory Negligence, Heniss, 1959, Tenn L. R. and cf. 1 531, 540, 541; Restatement of century, Torts 1267, Sec. 485. nineteenth Older, text emphatically writers stated the defense would apply at common law. I Shearman and Redfield, Negligence, Contributory Rev. ed. 221, 337; Beach, Negligence, p. 3rd ed. re., 1899, 167. 166, analogous parent’s
In the
situation of a
suit for
negli-
loss
services of his child due to defendant’s
gence, it has been stated or
without
assumed,
discus-
contributory negligence,
sion, that
the child’s
if the
age
capable
child
negligent
sufficient
to be
operate
Whang Hong
conduct, will
(1955),
as a bar.
v.
Boyd
lationsMp in- whose to the for that make him liable is such as to volved negligence person’s to a if resulted in person. in modern the husband is Here, not third accordingly torts and law liable for his wife’s recovery against a third not be barred from should assign, negligence. person a reason, To as her really beg- action character of his the derivative ging question than little more since it does language. And to state result in different state the is ‘di- cause of action which there is but accurate wife and husband is not between the vided’ interest is differ- nature of the husband’s since ent and rule any event, the wife’s. In distinct from appears no dis- and there seems to be settled change part it. position courts to Of on the negligence, if it contributed husband’s course the recovery by injury, Mm al- will bar his wife’s right though her recover from affect it will not injuries.” person negligent for her own third in and the textbook writers are courts Thus, disagreement issue as to whether or sharp should bar a husband’s recovery such a consortium action as in wife from alleged against an tort instituted which she this negligence with the husband’s combined whose feasor injury upon are him. The courts infliction in the contributory holding that the husband’s unanimous writers are unanimous negligence the wife. bars not. that it should logical
Symmetry otherwise, termed law or, para- highly consistency but desirable; course, is, apparent justice. that the importance It is mount permitted wife should be that a believe do not courts injuries were the result her husband’s if to recover contributory negligence. Notwithstand- part of his the courts writings authorities, textbook ing the judgment favor wife’s do not believe that Contributory just. circumstances would under such gives litigant negligence to take all or him enables nothing. logic apparent that the of the textbook writers
It is persuaded the courts that wives should be has not alleged permitted tort from an feasor the to recover damages when the amount of husband’s con- entire responsible tributory some *6 amount. may operation the the of rule of con
It be that tributory negligence gives victor all or noth logic. ing in the textbook writers’ Evi is a weakness dently view with disfavor contention that the courts damages pay party should all of when the a third responsible for own was some husband’s may operation of them. it be that the the doc Or, of subject trine consortium is to criticism when it of against permits family up party team a third though recover her name even her allow the wife to recover. The wife who drove cannot car, husband, strangers to each husband of are, course, easy quietude it In the of their abode for other. of to lend his or her name to the other so them winning assuming, may that a law suit of filed— contributory negligence not a road block. course, may kind induce the above mutter Considerations of harmony ings judge’s conscience in with the by long period of men over a time on view taken murmurings of the soul be more those bench; logic. cogent return to the state than the writers’ We quotation that we took from made in the above ment appears Harper rule to be settled and James: “the part disposition on the of courts no and there seems Having change and since we been find settled, it.” 436- disposition change ourselves no we it, abide properly settled rule. The circuit court treated the
plea permissible as a de- fense. plaintiff
Counsel for the in the case bar at have heavily upon relied our decision in v. DuPuis, Wolff (1963). 233 Or P2d 318, 378 In the Wolff case spouse suing we held that one loss consortium neither entitled to the benefits nor barred estoppel arising of collateral burdens judg- out of a brought by spouse ment in a former action the other injuries. questions for his own One of the this court was asked the Wolff case to but which decide, we did not decide because it was not before us, was the question presented. Logically, perhaps now should person -ought follow the Wolff case that a to be regardless able to recover for loss consortium bodily right injured spouse to recover for injuries. logic only own However, his is not the con- Experience sideration. also has some value in the justice. contributory administration.of The doctrine of negligence, with all faults, its nonetheless survives be- justice system against cause our has set its face *7 person profiting negligence from his own combined long of another. So as we with that retain the notion negligence contributory a that is valid defense to a negligence proper negli- then it is to hold that action, person’s spouse gent cannot convert the fruits of his recoupment negligence family into financial the exchequer. remaining proceed assignments to the two
now We of error. assumes first of the two that the
The
instruc
jury
guilty
if
that
the husband was
told the
tions
degree,
slightest
plaintiff
negligence
the
in the
cannot
tbe instructions
so
do not believe that
recover. We
“the slightest
the term
Although they employed
stated.
that
if
“con-
added
such
they
negligence
degree,”
of this
the
accident,”
the
cause
proximate
tributed to
In other
recovering.
words,
barred from
was
plaintiff
that negligence
with
they
jury
clarity
told the
bar
in order
must
recovery,
the husband’s part,
In
of the accident.
criti-
have been
cause
proximate
instruction that was
the
given,
appellant’s
cising
involved
degree
brief
states:
“The
is
(plaintiff’s)
contribution
and
degree
degree
negli-
follows
Shelton
as
from
quotes
The criticism
gence.”
al,
v.
et
We are satisfied instruction, proper to the the effect of form, jury contributory explained and that it was free from error. the two to which we The second of instructions referred met an just inadequate exception. with refrain instruction is we therefore lengthy to the instruction reads as it. The quoting exception will court’s instruction with follows: “I except event happen plaintiff’s to what would regard “You responded: trial husband died.” The judge that.” Then counsel plaintiff’s have an exception there no the court’s instruction “And, continued: in regard regarding permanency evidence in this case think, on I there consortium, grounds, to the loss to a on it amounts comment evidence, such evidence.” for an award of damages basis appellant’s
a presented contention that evidence which she showed that the permanent to her neck husband’s jury and that therefore the should treat it as such. The referring instruction, however, to the term permanency,” certainty “extent of mentioned the that the husband and wife would die and that when either relationship died upon the death would terminate the Although which consortium was based. the attack plaintiff which seeks make in this court the instruction arose out the mention of the cer- tainty of we do not death, believe that that is the exception during basis of the which she saved the trial at the close instructions. exception given jury
An to an instruction to a judge purported should reveal to the trial defect excepting party may wish to make the sub ject upon appeal. exception matter of attack specific penetrating should be as and as as the stress permits. purpose requiring clarity of the trial exceptions gratify any possible is not to whim of judge, judge oppor trial but to afford the trial an tunity exactly to catch what is in counsel’s mind and thereby exception possesses determine whether the to an merit extent that the instruction should be recast. party, upon excepting, short, In must make known judge specific objection may to the trial which he present upon appeal. exception wish to If his then possesses judge merit taken and induces the trial subsequent appeal recast his words, avoided. But what then if he does not disclose in his mind, appeal be the ultimate result. needless We do excepting, spoke counsel, that when not believe judge “permanency,” disclosed to the trial he judge’s the trial mind was mention what he had or wife. either husband the death of *9 we as to uncertain, indicate, are as will now We upon grounds of the attack the instruction which the plaintiff’s his had in mind when voiced counsel he uncertainty exceptions. Did of life is he believe that damages awarding of in case this not a factor in only “permanency” Did that the character? he believe controlling factor in determin- was the the damages jury ing the which the should the amount of part attack award? Did he have in mind an the jury: “Bear in mind which told the of the instruction might many elements that or could enter that there’s permanency.”? question Did he have into part jury: which told the mind the of the instruction no evidence here that whatever loss “There has been was caused the lack attention to consortium year going or next his wife year to continue this or the is part mind he have in next,” after or did say “The court can’t the instruction which stated: you categorically going to that the man is live thirteen years going to treat her or or that he in the fifteen that he now.”? believe same manner We that inadequate. exception
Affirmed. dissenting.
O’CONNELL, J., majority opinion admits that “the commenta The * * * have and modern text writers been tors unani condemning reasoning and the result mous spouse’s holding that the courts” reached to an action for bar loss of consortium. ‹ only The answer to this criticism ‹ majority list of authorities cited extensive See the suggestion prepared opinion. at least court be majority Self, Cal2d depart rule is found in Self v. 58 majority (describing (1962) as 683, 691, rule P2d 70 unjust). “ aving [h]
seems to be that we settled, since been disposition change find in ourselves no abide we it, by the settled rule.” against
This does not answer the criticism levied discharge responsibility and it does not rule, our appellate recognize only principles as an court to those supported by lawof that can be sound reason. The majority opinion obliquely possible grounds refers to accepted by suggesting may” rule that “it permit family that “the courts” do not want “to party.” › up opinion against a third team does agrees not indicate whether this court with the ration says “may” move a ale court to choose the *10 “settled rule.”
Assuming reasoning that the reference to such I an endorsement of believe that it, the critics have good any purpose I not answered it. do that think by summarizing be served would these answers in this dissent. majority appear would make it that it has “justice”
chosen whereas the critics have the chosen “symmetry writings bare of the law.” The reveal that arguments abolishing the for the rule are more than logical upon consistency an insistence alone. But even if it were all conceded that this is that the critics have they explain why to are to have us offer, entitled it just permit damages personal to towife recover for injuries injury property spite or to in of her husband’s contributory negligence, unjust permit but that it is to damages her recover when she seeks for loss › And the majority further states that “It be that contributory operation negligence gives of the rules of nothing logic.” all or victor is a weakness in the textbook writer’s Frankly, I must admit that I do not know what this statement evaluating proves way or it means rule what or the other urged legal commentators.
Ml contributorily her husband because consortium attempt not does opinion The majority negligent. The difference inconsistency. this glaring explain actions that to rest ground cannot be made are inde- damage property for personal are deriva- for loss of consortium and actions pendent DuPuis, v. already have decided tive. We Wolff latter action that P2d (1963) 233 Or is non-derivative. treat non-derivative actions do we two then,
Why, or reasons for not employing The same differently? are contributory applicable employing If barren that divorced logic both class of cases. are then I would that we “justice” say guilty every case we nearly decide, because employing differences. trywe not to use distinctions without majority It to me that comes opinion appears for the do not favor recovery down to this: We actions of loss of consortium and so we bar them allowing I contributory negligence. might join the defense of if it were judicial legislation in this piece has legislature already pre-empted the fact has us no (ORS given the field reason 108.010) actions for loss service should assume that favor than any treated with less actions for other is contributorily where plaintiff’s spouse losses negligent.
I JJ. this join dissent. Denecke, Sloan dissent.