Deshotel v. Atchison, Topeka & Santa Fe Railway Co.

328 P.2d 449, 50 Cal. 2d 664, 1958 Cal. LEXIS 183

Opinions

GIBSON, C. J.

Plaintiff’s husband was severely injured when a taxicab in which he was a passenger collided with a train. He sued the railway company, the taxicab company, the train engineer, and the cab driver, obtaining a judgment in the amount of $290,000, which was affirmed on appeal (Deshotel v. Atchison, T. & S. F. Ry. Co., 144 Cal.App.2d 224 [300 P.2d 910]). During the pendency of that action plaintiff brought this suit against the same defendants. She alleged that as a result of their negligence her husband was injured in such a manner that she “has been denied his care, protection, consideration, companionship, aid, and society” and that “by reason of the loss of the consortium of her husband” she has been damaged in the sum of $100,000. A general demurrer by the railway company and the engineer was sustained without leave to amend, and plaintiff has appealed from the ensuing judgment.*

The sole question presented is whether a wife whose husband has been injured as the result of the negligence of a third person may maintain an action for loss of ‘‘consortium,’’ a term which is used in this opinion to refer to the noneconomic aspects of the marriage relation, including conjugal society, comfort, affection, and companionship. The question is one of first impression in this state, but it has been answered by the courts in many other jurisdictions. In England and in the vast majority of American jurisdictions the wife has been denied the right to recover for loss of consortium. (Best v. Samuel Fox & Co., Ld. [Eng.], (1952) A.C. 716; Filice v. United States (1954), 217 F.2d 515, 517; Josewski v. Midland Constructors, Inc. (1953), 117 F.Supp. 681; Jeune v. Del E. Well Const. Co. (1954), 77 Ariz. 226 [269 P.2d 723] ; Franzen v. Zimmerman (1953), 127 Colo. 381 [256 P.2d 897]; Giggey v. Gallagher Transp. Co. (1937), 101 Colo. 258 [72 P.2d 1100] ; Ripley v. Ewell (Fla., 1952), 61 So.2d 420; Brown v. Kistleman (1912), 177 Ind. 692 [98 N.E. 631, 40 L.R.A.N.S. 236]; Cravens v. Louisville & N.B. Co. (1922), 195 Ky. 257 [242 S.W. 628]; Coastal Tank Lines v. Canoles (1955), 207 Md. 37 [113 A.2d 82, 86-88]; Emerson v. Taylor (1918), 133 Md. 192 [104 A. 538, 5 A.L.R. 1045]; Hartman v. Cold Springs Granite Co. (1956), 247 Minn. 515 [77 N.W.2d 651]; Stout v. Kansas City Terminal Ry. Co. (1913), 172 Mo.App. 113 [157 S.W. 1019]; Bernhardt v. Perry (1918), 276 Mo. 612 [208 S.W. 462, 13 A.L.R. 1320] ; Larocca v. American Chain & Cable Co. (App.Div., 1952), 23 N.J.Super. 195 [92 A.2d 811, 812-814]; Tobiassen v. Policy (1921), 96 N.J.L. 66 [114 A. 153]; Don v. Benjamin M. Knapp, Inc. (1953), 281 App. Div. 893 [119 N.Y.S.2d 801] (affd., 306 N.Y. 675 [117 N.E.2d 128]); Smith v. Nicholas Bldg. Co. (1915), 93 Ohio St. 101 [112 N.E. 204, L.R.A. 1916E 700, Ann.Cas. 1918D 206] ; Nelson v. A. M. Lockett & Co. (1952), 206 Okla. 334 [243 P.2d 719] ; Howard v. Verdigris Valley Electric Cooperative, Inc. (1949), 201 Okla. 504 [207 P.2d 784] ; Garrett v. Reno Oil Co. (Tex.Civ.App., 1954), 271 S.W.2d 764; Nickel v. Hardware Mutual Cas. Co. (1955), 269 Wis. 647 [70 N.W.2d 205].) As noted in a large number of these eases, the withholding of such a right from the wife at common law was due to the fact that she was regarded as not having suffered a compensable injury rather than to her disqualification from suing in her own name, which was removed by passage of Married Women’s Acts.

With the exception of a North Carolina decision, subsequently overruled (Hipp v. E. I. Dupont de Nemours & Co., 182 N.C. 9 [108 S.E. 318, 18 A.L.R. 873], overruled by Hinnant v. Tide Water Power Co., 187 N.C. 288 [126 S.E. 307, 37 A.L.R. 889]), the right of the wife to recover for loss of consortium caused by negligence was not recognized until 1950, when the case of Hitaffer v. Argonne Co., 183 F.2d 811, held she was entitled to relief.* A few decisions have followed the Hitaffer case. (Cooney v. Moomaw, 109 F.Supp. 448; Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351 [299 S.W.2d 41, 45 et seq.] ; Brown v. Georgia-Tennessee Coaches, 88 Ga.App. 519 [77 S.E.2d 24] ; Acuff v. Schmit, 248 Iowa 272 [78 N.W.2d 480].) However, most courts which have considered the problem since 1950 have followed the majority rule and have refused to permit the wife to maintain an action of this type.

In a number of jurisdictions where the wife has not been allowed recovery, the husband is given such a right if his wife is negligently injured. (See Prosser on Torts (2d ed. 1955), 701 et seq.; Rest., Torts, § 693; 133 A.L.R. 1156, 1157; 23 A.L.R.2d 1378, 1380.) Plaintiff argues, in effect, that the courts which withhold relief from the wife have relied upon medieval concepts of the marriage relation, that in modern times the marital status of the wife has changed, placing her in a position equal to that of her husband, and that there is no longer any reason to refuse her the bind of redress which he may obtain. Some jurisdictions, however, have denied recovery to the husband as well as to the wife. (Lockwood v. Wilson H. Lee Co., 144 Conn. 155 [128 A.2d 330, 331]; Bolger v. Boston Elevated Ry. Co., 205 Mass. 420 [91 N.E. 389]; Blair v. Seitner Dry Goods Co., 184 Mich. 304 [151 N.W. 724, 726-727, L.R.A. 1915D 524, Ann.Cas. 1916C 882]; Helmstetler v. Duke Power Co., 224 N.C. 821 [32 S.E.2d 611, 613]. The law in California with respect to the right of the husband is not settled. In Meek v. Pacific Electric Ry. Co., 175 Cal. 53, 56 [164 P. 1117], it was said that damages could not be obtained by a husband for the loss of his wife’s “society, or what is termed the consortium.” This statement was rejected as “inadvertent dictum” in Gist v. French, 136 Cal.App.2d 247 [288 P.2d 1003], which held that a husband whose wife had been negligently injured could recover not only for the loss of services but also for the loss of cohabitation and society. We agree that the quoted statement in the Meek case is dictum, but a statement in the Gist case which indicates that the wife may recover for loss of consortium resulting from a negligent injury to her husband is also dictum (see 136 Cal.App.2d 247, 257), and, for the reasons hereafter given, the language in the Gist case relating to the wife’s rights is disapproved.

It is clear that the granting of relief to the wife for loss of consortium caused by negligent injury to her husband would constitute an extension of common law liability, and the courts are justifiably reluctant to depart from established limitations on recovery. Obviously, such an extension would also involve problems of policy or procedure. A judgment obtained by a husband after he is injured by a third person might include compensation for any impairment of his ability to participate in a normal married life, and, if his wife is allowed redress for loss of consortium in a separate action, there would be danger of double recovery. Any harm she sustains occurs only indirectly as a consequence of the defendant’s wrong to the husband, and the measurement of damage for the loss of such things as companionship and society would, involve conjecture since their value would be hard to fix in terms of money. Moreover, if a cause of action in the wife were recognized on the basis of the intimate relationship existing between her and her husband, other persons having a close relationship to the one injured, such as a child or parent, would likely seek to enforce similar claims, and the courts would be faced with the perplexing task of determining where to draw the line with respect to which claims should be upheld. Another difficulty is that judicial, as distinguished from statutory, recognition of the wife’s cause of action would operate retroactively and might work hardship upon persons who, in reliance upon the common law rule, have made settlement with the husband, believing that the wife could not sue.

In our view the Legislature rather than the courts can best deal with these problems. For example, the Legislature, if it found this type of suit to be desirable, could define the extent of the liability, designate who may maintain the action, and provide safeguards against the danger of double recovery, such as a requirement that there be a joinder of the person directly injured and the one consequentially harmed. The Legislature could also "specify whether the proceeds should belong to the plaintiff alone or to both spouses. (Cf. Civ. Code, § 163.5, declaring that damages awarded a married person for personal injuries are the separate property of such person.) Some of the objections noted above with respect to an action by the wife apply with equal force to one brought by the husband, but a husband’s claim is not before us, and we need not determine whether such a claim should be allowed. Clarification by statute as to both the husband and the wife would, of course, be preferable to piecemeal determination of the problems by judicial decision.

The cases of Work v. Campbell, 164 Cal. 343 [128 P. 943, 43 L.R.A.N.S. 581], and Follansbee v. Benzenberg, 122 Cal.App.2d 466 [265 P.2d 183, 42 A.L.R.2d 832], are not inconsistent with our conclusions. In the Work case the defendant, with the intention of causing the plaintiff and her husband to separate, knowingly made false statements to the wife about the husband, inducing her to treat him harshly, with the result that he left her and she was permanently deprived of his society, affection, and support. The ease thus did not concern negligent injury to the husband with indirect damage to the wife but, instead, involved conduct which was actionable because it was designed to inflict direct harm upon her. The Follansbee case is also readily distinguishable. The recovery there permitted was not for loss of consortium but for medical expenses which the plaintiff wife had paid when her husband was negligently injured. The wife was obligated by statute to pay such expenses, and the relief granted was for a measurable economic loss that she was required to bear as a result of the defendant’s wrong.

Nor are the decisions in point which hold that in an action for wrongful death loss of the decedent’s society, comfort, and protection may be considered as a factor in determining damages (Blackwell v. American Film Co., 189 Cal. 689, 700-701 [209 P. 999]; Beeson v. Green Mountain G.M. Co., 57 Cal. 20, 38-39; Newton v. Thomas, 137 Cal.App.2d 748, 769-770 [291 P.2d 503] ; Burke v. City & County of San Francisco, 111 Cal.App.2d 314, 322 [244 P.2d 708].) These cases were decided under section 377 of the Code of Civil Procedure, which created a cause of action not recognized at common law.(Earley v. Pacific Electric Ry. Co., 176 Cal. 79, 81 [167 P. 513, L.R.A. 1918A 997].)

^The Legislature has not seen fit to alter the common law rule that the wife cannot recover for the loss of consortium resulting from a negligent injury to her husband, and we are of the opinion that any departure from the overwhelming weight of authority in support of that rule should be left to legislative action.

The judgment is affirmed.

Shenk, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.

Footnotes

*

The taxicab company and its driver are not mentioned in the judgment or the notice of appeal, and the record does not disclose the status of the case with respect to them.

*

The Hitaffer ease was subsequently overruled on another point. (Smither & Co., Inc. v. Coles, 242 P.2d 220.)