2 P.2d 916 | Or. | 1931
The plaintiff, a widow, brought this action against the defendant for the loss of consortium of her husband whose injury and subsequent death, she alleged, occurred through the negligence of the defendant. A demurrer to the complaint predicated upon the contention that that pleading did not state facts sufficient to constitute a cause of action, was sustained by *342
the circuit court, and judgment for the defendant was thereafter entered when the plaintiff declined to plead further. She then appealed. Previously, the plaintiff, as administratrix of the estate of her deceased husband, had recovered judgment against the defendant in the sum of $7,500 in an action of the character authorized by section 5-703, Oregon Code 1930; see Sheard v.Oregon Electric Railway Co.,
Section 33-215, Oregon Code 1930, provides:
"All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed; provided, that this act shall not confer the right to vote or hold office upon the wife, except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has."
The plaintiff seems to concede that the decision in Kosciolekv. Portland Ry. L. P. Co.,
It will be recognized that distinctions of a consequence exist between the situations presented by Kosciolek v. PortlandRy. L. P. Co. and those presented by the other two cases. The primary and direct damage resulting from a negligent act inflicts itself upon the person injured thereby. If that individual is the head of a household, the effect of the negligent act may also assert itself upon the wife and the other dependents of the injured party by depriving them of the support which otherwise would have been forthcoming from the injured person but the injury received by them is consequential and remote when compared with the injuries inflicted upon the person who was struck; see, for instance, Smith v. Nicholas Building Co.,
The above distinctions possibly are not controlling, but, having them in mind, let us proceed to determine whetherKosciolek v. Portland Ry. L. P. Co. finds support among the authorities, and also, of course, in *345 reason. In our search, we shall undertake to find whether courts which award recoveries in situations like those presented inKeen v. Keen and Elling v. Blake-McFall Co. award damages for loss of consortium to a wife whose husband was negligently injured by the defendant.
The plaintiff seems to concede that in the absence of statute a wife has no right to maintain an action for an injury negligently inflicted upon her husband. Plaintiff's concession is well sustained by the authorities: see the annotations in Ann. Cas. 1918D, p. 208; 19 L.R.A. (N.S.) 633; 30 C.J., Husband and Wife, p. 973, § 693, and 13 R.C.L., Husband and Wife, p. 1443, § 493. The reason for this condition of the common law we shall mention later. Our specific problem, therefore, is whether the section of our Married Women's Act previously quoted has effected a change in the above rule, and whether the holdings in Elling v.Blake-McFall and Keen v. Keen demand that a wife or a widow should be permitted to maintain an action of the present character.
The reason why at common law a husband could recover for loss of consortium, but his wife could not, is historical in character. In the bygone generations when the customs, conduct, and belief of the English people were crystallizing themselves into the rules of human conduct which are now known as the common law, a woman was not regarded socially or civilly as the equal of her husband. He had the right to her labor and services. It was her duty to administer to him in all relations of domestic life, including the rearing of his children and the maintenance of his household. Marriage operated as a suspension for most purposes of the legal existence of the wife. In those days husband *346 and wife were regarded as one — and he was that one. That contemplation of the status of a married woman created her various disabilities; her inability to contract, to maintain an action in her own name, etc. With much truth it has been said that in those bygone days the relationship between husband and wife was that of a liege lord and his vassal. Such being the manner in which the law regarded husband and wife it can readily be understood why a husband could maintain an action for the loss of the consortium of his wife without there being available to the wife a similar action. Blackstone tells us (3 Blackstone, Lewis's Ed., p. 143) that at common law notice was taken of only the wrongs done to the superior of the parties related and that the loss of the inferior was totally disregarded. The reason, according to Blackstone, was "the inferior hath no kind of property in the company, act, care or assistance of the superior, as the superior is held to have in those of the inferior; and therefore, the inferior can suffer no loss or injury."
There remains for determination the question whether the above section of our Married Women's Act has wrought a change. The decision in Kosciolek v. Portland Ry. L. P. Co., supra, written by Mr. Justice BURNETT, held that that piece of legislation conferred upon the wife no new rights of action, but merely removed existing disabilities so as to enable the wife in her own name to secure redress for breaches of her rights. In the decade and a half that has passed since that conclusion was announced many other courts have passed upon the same problem but none has come to an opposite conclusion. Quite to the contrary, the decision written by Mr. Justice BURNETT has been cited as an illuminating authority by several other courts. *347
The Supreme Court of Maryland (Emerson v. Taylor,
"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. * * * We conclude that § 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." *348
A writer in 31 Law Notes 65, who is strongly sympathetic with the view that the right to sue for loss of consortium should be mutual, states the condition of the authorities thus:
"In the light of modern ideals as to the equality of spouses before the law, and the legislation which has been enacted in aid of those ideals, it would seem prima facie that no right could possess more of mutuality than this, and that its infraction should give remedies in no way affected by the sex of the spouse deprived of consortium. Yet such is the force of tradition that the rule is almost universal that while the husband has the right to sue for a loss of consortium due to a negligent injury to his wife, despite a recovery by the wife in her own name for the injury (see 13 R.C.L. title Husband and Wife, § 642), the wife has no corresponding right in case of injury to her husband. (Cites cases.) The modern rule was thus bluntly stated inCravens v. Louisville, etc., R. Co., (1922)
In the following annotations will be found collections of cases holding that the Married Women's Act *349
has not changed the common law which denied to the wife an action for the loss of the consortium of her husband against one who had negligently injured him: 59 A.L.R. 680; 37 A.L.R. 897; 18 A.L.R. 882, and 5 A.L.R. 1049. Two recent decisions to similar effect not cited in the above annotations are: Bull v. Chicago M. St.P. Ry. Co.,
"For an injury done to the husband the wife cannot join with him in an action for damages, unless by statutory authority; and except in one state, no action accrues to the wife for the loss sustained by her, such as his consequent inability to support and maintain her comfortably, or loss of his wages, services, or consortium, nor can she recover for nursing him, where the injury was caused by a third person's negligence, as distinguished from the intentional and direct injury which in some jurisdictions supports a wife's action for alienation of her husband's affection or a * * *."
It will be observed that the editor of Corpus Juris states that the above rule has found support in all of the decisions "except in one state." The decision which he cites is Hipp v. E.I.Dupont de Nemours Co.,
It thus appears that the authorities everywhere are in harmony with our holding in Kosciolek v. Portland Ry. L. P.Co. The decisions acquiesce in the conclusion stated in that case that at common law the wife had no such cause of action and that the Married Women's Acts have given her none.
There remains for consideration only the question whether the holdings in Keen v. Keen and Elling v. Blake-McFall Co. are out of harmony with the decision in the Kosciolek case. The distinctions between the situation in Keen v. Keen and the Kosciolek case are, as we have already pointed out, the difference between an intentional wrong and a negligent one, and the further distinction between direct damages and consequential ones. Whether these differences are sufficient to justify a difference in the legal treatment, *352
and whether an intentional injury should be dealt with differently from one inflicted by a negligent act are subjects for legislative determination and no longer for judicial attention. The reasons for the different treatment of husband and wife in actions for loss of consortium we have already discussed. It is interesting to note, however, that in some states unlike our own the effect of the Married Women's Acts has destroyed the husband's right of an action for loss of consortium. See, for instance, Bolger v. Boston Elevated Railway,
Viewing the above in a purely abstract manner, it would seem that in a wife's demand for damages for loss of consortium through the negligent injury of her husband the loss sustained by her is no more remote and consequential than the loss sustained by a husband whose wife is similarly injured. Possibly, as is suggested in 30 Col. L. Rev. 651, the distinction between actions founded upon injuries willfully or maliciously inflicted and those negligently inflicted is not sufficiently substantial to warrant the maintenance of the one and the rejection of the other. But, be that as it may, it is clear that the law has never granted to the wife a right of action for loss of consortium *353 sustained by a negligent act, and that must suffice as a reason for our conclusion that the circuit court committed no error.
A practical reason that is available possibly justifies what seems like a discrimination between husband and wife: the wife is well compensated by other special privileges and rights for the absence of this remedy.
The judgment of the circuit court is sustained.
BEAN, C.J., RAND and KELLY, JJ., concur. *354