Kosciolek v. Portland Ry., L. & P. Co.

160 P. 132, 81 Or. 517, 1916 Ore. LEXIS 298

• Court: Oregon Supreme Court
• Decided: October 10, 1916
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1. Many questions are suggested in the plaintiff’s brief which are unnecessary to consider. The whole question hinges upon the determination of whether or not a widow can maintain an action for loss of consortium incident to the marriage relation between herself and her deceased husband. It may be set down that at common law, while the husband could maintain an action for an injury to or death of the wife whereby he lost her services and consortium, yet the wife herself could not maintain a corresponding action to recover for the loss of services and consortium due from the husband to herself.

2. The position of. the plaintiff, however, is that since the enactment of Section 7050, L. O. L., a wife has rights and remedies equivalent in all respects to those with which the hnsband is endowed. That statute reads thus:

“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recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed; provided, that this act shall not confer the right to vote or hold office upon the wife, except as is otherwise provided by law; and for any unjust usurpation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. ’ ’

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.

3. It is only by virtue of statutes that anyone has a chose in action not known to common law. If our legislation gave the widow a right to recover for the death of her husband, or a wife -to recover for injury to her spouse, she would be a competent suitor under this section to institute an action for damages for the violation of her statutory right, but no enactment exists giving her that privilege.

4. The natural rights of a person at common law are the right of personal security in the legal enjoyment of life, limb, body, health and reputation, the right of personal liberty, and the right of private property: 1 Bl. Com. 129. It is said in Black’s Law Dictionary, page 1038:

“Natural rights are those which grow out of the nature of man and depend upon personality as distinguished from such as are created by law and depend upon civilized society, or they are those which are plainly assured by natural law.”

These words of the statute refer to those privileges which a feme sole possesses in common with any other individual, and the only effect of the enactment is to allow a married woman to litigate in her own name independent of her husband when these rights have been violated. It cannot be said that the marriage relation gives rise to natural rights in the sense designated by the common-law writers, for that relation grows out of the customs of society, and is more or less conventional.

5. The authorities cited by the plaintiff are instances either where the husband is suing for an injury to his wife, thus enforcing his common-law right, or where there is a direct attack upon the marriage relation itself, as for the alienation of the husband’s affection and the like. The latter cases depend upon the fact that there is a direct and intentional interference with the marriage relation. As said in Flandermeyer v. Cooper, 85 Ohio St. 327 (98 N. E. 102, Ann. Cas. 1913A, 983, 40 L. R. A. (N.S.) 360, 364):

“This right is invaded whenever a third person through machination, enticement, seduction or other wrongful, intentional, and malicious interference with the marriage relation deprives the husband or wife of the consortium of the other.”

There the attack upon the marriage relation is direct, with purpose and malice. The harm to the wife is immediate and not merely consequential or secondary, and the law visits punitive damages in her favor upon the wrongdoer. A negligent injury to the husband, however, affects the wife or widow only indirectly or collaterally, calling for mere compensatory damages which the hnsband while living, or his personal representatives after his death, may collect, thus settling the grievance once for all. This distinction runs throughout the authorities, and is ground for holding that a mere negligent wrong to the hnsband does not furnish, cause of action to a woman in her character either as wife or widow. The injury to her in such conditions is not the direct, natural, and necessary consequence of the carelessness of the defendant. For what he suffered during his life the husband had an action directly against the defendant.

6. It is through her spouse that the plaintiff claims in the present instance; but, while he had control of the situation, he released his cause of action, and, the source of her claim thus having been taken away, she has no standing to demand more. After the death of an individual by the wrongful act of another, the statute gives a cause of action to his personal representatives under Section 380, L. O. L. Many persons, such as minor children and dependent relatives, besides the wife, might be more or less indirectly affected by injury rendering the husband or father less capable to continue his duty of support. , The wife stands in no better plight than any of the others mentioned. Section 380 affords relief to her in common with the others, and it would be unreasonable to hold that the defendant, after fairly compensating the injured man for the negligent wrong inflicted upon him, should be compelled to search out all others of his relatives and litigate or settle with them.

It is unnecessary to decide whether the husband could bring such an action as this or not where his wife was injured or slain. It is sufficient to say that there is no statute so equipping the wife or widow. The complaint did not state a cause of action against the defendant. Much instruction on this subject may be derived from the perusal of the following cases: Feneff v. New York Cent. & H. R. Ry. Co., 203 Mass. 278 (89 N. E. 436, 133 Am. St. Rep. 291, 24 L. R. A. (N. S.) 1024); Brown v. Kistelman, 177 Ind. 692 (98 N. E. 631, 40 L. R. A. (N. S.) 236); Goldman v. Cohen, 30 Misc. Rep. 336 (63 N. Y. Supp. 459); Stout v. Kansas City Terminal Ry. Co., 172 Mo. App. 113 (157 S. W. 1019); Gambino v. Manufacturers’ Coal & Coke Co., 175 Mo. App. 653 (158 S. W. 77); Patelski v. Snyder, 179 Ill. App. 24; Marri v. Stanford St. Ry. Co., 84 Conn. 9 (78 Atl. 582, Ann. Cas. 1912B, 1120, 33 L. R. A. (N. S.) 1042).

The judgment is affirmed. Affirmed.

Me. Chief Justice Mooee, Me. Justice Benson and Me. Justice Harris concur.