Montgomery v. Stephan

101 N.W.2d 227, 359 Mich. 33

• Court: Michigan Supreme Court
• Decided: February 25, 1960
• Docket: Docket 16, Calendar 48,134
• Status: Published

Opinions

Smith, J.

The action before us is brought by a wife. She tells us¹ that the defendant was driving his car in a reckless manner and in so doing struck her husband’s car at a time when her husband, driving with care and caution, was almost completely across an intersection. As a result of such impact her husband’s car was driven against a tree, embedding the bark thereof in his head. He suffered brain concussion which may develop into epilepsy, he lost the voluntary functioning of his kidneys, he sustained 4 fractures of the pelvis, a puncture of the abdomen, and other severe injuries. "We could go on for some time but need not. Some of the injuries may be repaired, at least after a fashion, and others may not.

She is suing for damages for none of these. Her cause of action involves a hurt directly to her, equally obvious, she says, equally disastrous, and equally deserving of the protection of the law. She says, in effect, that the negligence of the defendant has reduced her husband to a physical and psychological wreck, a mere shell of manhood, unable to sleep, unable to work effectively, in constant pain, seared, worried constantly, physically weak, and unable to enjoy even normal social life. She asserts that she has been deprived of her husband’s society and comfort, of his aid and companionship, and of normal conjugal affection.

The legal term for her asserted loss is that of “consortium.” It has been variously defined, sometimes in terms enormously complex as the judges followed the habit of lawyers of never using 1 wqrd where 2 may be employed. One of the most careful of the studies of consortium, in fact, attributes to the redundancies of common-law pleading much of the confusion and injustice prevalent in this field.² Actually, all that consortium means is conjugal fellowship.³ But the pleader at the common law (following his practice in deeds, wills, contracts, and what-not) alleged the loss of love, companionship, affection, society, comfort, sexual relations, services, solace, and or and on until his dictionary ran dry. It does, indeed (since it is fellowship between man and wife), embrace all of these things, and more. But the verbosities of common-law pleading should not lead the court to absurdities, such as the conclusion, for instance, that consortium has an economic side, for loss of which one may recover, and a sentimental side, for loss of which no recovery may be had.⁴ What of the spiritual side? The parental side? The carnal side? It would be a reckless semanticist who would assert that he was able, justifiably, to place each of the various elements of conjugal fellowship in one or the other of the suggested pigeonholes, just as it would be a bold artist who would assert that he could categorize all of the hues of the spectrum into 2 pigeonholes, one marked “light,” the other marked “dark.” Such efforts may be amusing as mental exercises, but when judges seriously put them forward as grounds for decision, absurdities will result and injustice is bound to be done.

The wife before us, then, seeks recovery for her loss of consortium. To this the trial court replied that, legally speaking, she had not suffered a loss. So it is that she comes to us. The precedents do, indeed, deny her recovery. The husband, it is usually said, may recover for loss of consortium, but not the wife. This is nothing short of ridiculous. If one of the marriage partners may recover for loss of consortium, why may not the other? If the family larder is empty, does only one hunger? They stood together at the altar and jointly they entered into their conjugal relationship. They assumed commensurate rights, duties, and responsibilities. Where, along the line, did it all become one-sided, so that the law will grant recompense to one, on the theory that he has suffered a loss, but not to the other?

These precedents are venerable. Their chains may be moss-encrusted and rusty but only a few courts have held that they no longer control or confine.⁵ Thus again we reach the conflict that divides us, for the law, as Dean Pound put it, must be stable, and yet it cannot stand still. Were we to rule upon precedent alone, were stability the only reason for our being, we would have no trouble with this case. We would simply tell the woman to begone, and to take her shattered husband with her, that we need no longer be affronted by a sight so repulsive. In so doing we would have vast support from the dusty books. But dust the decision would remain in our mouths through the years ahead, a reproach to law and conscience alike. Our oath is to do justice, not to perpetuate error.

■ Is the holding that recovery be denied, in truth the demand of the common law? If so, and the vast amount of authority so saying bears witness thereof, there must, one day, have been reasons for the rule, for, as Holme’s tells us, the common law has grown by an historical process.⁶

The reasons, then, we seek in the period of time in which the monstrous doctrine had its origin. The status of the wife and mother at this time is made clear in the periodical rulings’ of the time. She was part chattel, part servant. As we observed in a concurring opinion in an earlier case, Sovereign v. Sovereign, 354 Mich 65, 73, 74:

“The picture we receive, sketchy as it is, of late 16th and early 17th century women is, by today’s standards, a depressing one. She was regarded as a creature (the choice of words is not our own) of limited intellectual attainments or possibilities. Education was largely denied her. There were few schools for even the girls of the wealthier families and the training given in those was limited to that of a ‘polishing nature, music and the arts.’ There was almost no opportunity for the rigorous intellectual discipline given to young men. They were married young, pawns in their father’s hands for the attainment of title or prestige. They could not possibly hope to reach, in fact, they were not ‘meant’ to reach, intellectual equality with their husbands. Their existence, socially and economically, pivoted around that of a dominant husband, authoritarian and paternalistic.”

With respect to the children of the marriage the husband’s so-called rights were near absolute. Although we find no case paralleling the early Roman law, under which the pater familias had the power to sell his child in the open market, or put it to death,⁷, it was clear that the English father might effectively prevent the mother’s access to her child; during his life,⁸ and even after his death maintain the bar with statutory sanction.

Such being the mother’s “rights” with respect to her children it follows, with the relentless logic of the common law, that her rights respecting her property and her person are no more generous. She was his chattel. What was hers, was his. The wife, says Bracton,⁹ “has nothing which is not her husband’s.” They were one, and, as one opinion put it,⁰ he was that one. All of her personal property, money, goods, and chattels of every description, became his upon marriage.* ¹ Since she was “under the power of her husband,” it followed that she had “no will of her own” and having no will of her own could not enter into a contract.² Of course, he was entitled to her services in the home as he would be to those of any servant in his employ. Should he lose them through the acts of another that other must respond in damages.³ But should the husband be injured, and she thus lose his protection and solace, might she, equally with him, maintain a like suit for her loss? In light of what has been said the question is nonsensical. To have a lawsuit we must have, to start with, someone capable of suing another. She, however, could not bring any action in her own name, for she was a legal nonentity.* *⁴ 5But this was not all. What if she were so injured by another as to be incapable of performing her wifely duties? Has the husband suffered a legally recognizable loss, so that he might cause that other to respond in damages? The answer is clear from the common law, as is the theory upon which it was based. He had. It was an actionable trespass for one to interfere with the services of another’s servant.⁵ This menial in the house, this chattel, responding to the term “wife,” also rendered services. It would follow, and it did follow, that the husband had a right of action for injury to her, grounded upon the theory that she was his servant.⁶ But could she sue a wrongdoer for injury to him? A servant sue for the loss of services of the master? Clearly not. If authority is needed for reply, Blackstone⁷ supplies it:

“One reason for which may be this: that the inferior hath no kind of property in the company, 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.”

This, then, is the soil in which the doctrine took root; the abject subservience of wife to husband, her legal nonexistence, her degraded position as a combination vessel, chattel, and household drudge whose obedience might be enforced by personal chastisement. Such being the case we need not cite authority to the proposition that the husband might at the common law, and may today, in the vast majority of jurisdictions, sue for injury to or loss by his wife’s services, affection, and companionship. But may a wife sue for loss of consortium? The modern answer, as well as the ancient, is that she may not. The abundance of the cases so holding is a monument to blind adherence to worn-out precedent, a stubborn, dogged refusal to recognize that, as Cardozo once wrote, “Social, political, and legal reforms [have] changed the relations between the sexes, and put woman and man upon a plane of equality. Decisions founded upon the assumption of a bygone inequality are unrelated to present-day realities, and ought not to be permitted to prescribe a rule of life.”⁸

Any attempt to pursue the manifold reasons offered up by modern courts for their refusals to permit the wife a recovery for her loss of consortium takes us on a tour similar to that of Minos in labyrinth of Daedalus. Each path leads to a dead end of reasoning and logic. Thus it is said that the injury suffered by the wife is too remote a consequence of defendant’s act to be made the subject of an action.⁹ Yet even if the proximate cause argument is valid, which is questionable, Hitaffer v. Argonne Co., Inc., 87 App DC 57 (183 F2d 811, 23 ALR2d 1366), injury to the same interest has never been regarded as too remote when the husband sues for his reciprocal loss. See 21 ALR 1517. It is said, moreover, that there is danger of double recovery, since the husband recovers for his diminished ability to support, and he is under a duty to support his wife. This merely sidesteps the issue. The wife is suing for damages to her interest. She does not seek recovery ror loss of support. Her effort is to recover for loss of companionship and of society. Moreover, here again we see the paradox before noted, the peculiar reasoning that sets up (as insuperable obstacles to the action of the wife) objections deemed completely immaterial when the husband sues for damage to the same interest. We have just noted it with respect to the problems of remoteness. Here we see it with respect to double recovery, for the husband has consistently been permitted to recover for loss of consortium. Yet, insofar as material services are included within the concept of consortium (and there is no doubt they form a part of the whole), it cannot be denied that there is a danger of allowing him a double recovery. This danger, however, has never been thought sufficiently real to bar the husband’s action for loss of his consortium, in addition to all other elements of damage. The solution is not difficult and was noted in Hitaffer v. Argonne Co., supra, 65: “it is a simple matter to determine the damages to the wife’s consortium in exactly the same way as those of the husband are measured in a similar action and subtract thefefrom the value of any impairment of his duty to support.”⁰

To a large degree, the objection in the cases to allowing the wife recovery for loss of consortium turns directly or indirectly upon the aspect of consortium just mentioned, that of material services. It is often said that the wife’s cause of action for loss of consortium must include an allegation of her loss thereof, for without it, we are told, she cannot maintain her action. It is then concluded that since she cannot make this allegation (who ever heard of a servant suing her master for loss of services?) her ease must fall. If she replies that the element of service is not the gist of the concept of consortium, she is told that without it nothing remains but sentiment and the law does not permit recovery for injuries to sentiment alone.

The argument thus made involves 2 fundamental errors. The first is that the concept of consortium, of conjugal fellowship, is capable of dismembership into material services and sentimental services. Is the well-kept home or the carefully prepared meal a manifestation of affection {i.e., a sentimental service) or of the skilled performance of a menial chore (i.e., a material service) ? Does the well-trained child know anything of sentimental services? Of material services? Of both? Are they different? Which is which? The fact of the matter is that the effort to break down consortium into its component parts is no more than a theoretician’s boast, the modern counterpart to the medieval resolution of the number of angels able to dance on the head of a pin. It requires a wisdom, and an effrontery, far greater than ours to make differentiations so subtle, if, indeed, they are within the realm of human competence.

The second fundamental error in the objection made is that (assuming we can and do make the theoretical differentiation described) the law does not permit recovery for the sentimental aspect alone of consortium.- We need only to glance about us to see that the law actually is otherwise. The actions for criminal conversation and alienation of affections are in point. It is law well-established, not even worth a counter struggle, that the gist of such actions is not the loss of services but the loss of conjugal rights.¹ Such actions are, consequently, maintainable by the husband,² for such injury even though he was no longer living with his wife at the time the injury occurred,³ and it is significant to note that in one of the earliest cases in this field, Guy v. Livesey (1619), Cro Jac (2 Cro) 501 (79 Eng Rep 428), the loss suffered by the husband, for which action lay, was not a loss of services at all but a loss of company. The fact of the matter is that there is no predominant element in the concept of consortium, that consortium is not capable of subdivision, and that it is not necessary that there be an allegation of the loss of any particular “element” thereof.

Finally, it is urged by some that the married women’s acts, designed to remove from them their degrading and demeaning common-law disabilities, and (in some cases) to implement their constitutional guaranties,⁴ not only did not aid the wife’s cause of action for loss of consortium, but eliminated the husband’s as well. Since we do not here consider the husband’s action, we will not pay our respects to the curious theory that we remedy the wrongful denial of a cause of action to one by denying it also to the other. This solution of the problem will appeal only to those enamored by symmetry. For the purposes of the case before us we cannot conclude that an act designed to shield women from the imposition of inequitable and sometimes degrading disabilities shall, rather, be employed as a sword to strike down her cause of action for the loss of an interest at the very heart and core of her married existence, the love, companionship, and society of her husband. It is not sufficient to say that such legislation “merely” removed procedural disabilities,⁵ and it is immaterial to her action today whether her cause of action existed at the early common law or not. The point is that the underlying-concept of the early common, law, the inferiority of the wife, has been repudiated, and the question for decision is not whether such a right existed then but whether it exists today⁶ — the difference between looking backward and looking forward. Is the face of justice, as someone put it, like the face on a coin, always to look backwards ?

So far as the technical ground for decision in such cases is concerned, they involve the premise that the action for loss of consortium rests upon the loss of material services, and, since neither spouse is now entitled to the services of the other, neither may maintain the action.⁷ Such historical basis, as we have seen, is highly questionable. The right to material services, whatever that may mean, is only an aspect of consortium, as we have seen. In fact, as Prosser puts it, “The loss of ‘services’ is an outworn fiction.”⁸ An historical basis is a poor basis for decision unless the conditions and customs of today so parallel those of the past that the reason for the rule still obtains. This is so patently not the case that discussion is unnecessary.

We are remitted, then, to a matter of sound judicial policy, a decision to be reached in the light of today’s society and the current common-law solution of comparable problems. Discussion of the issue in those terms may not result in unanimity but at least it will be conducted upon a rational, understandable, basis, not in the metaphysical realm of fictions. We come, then, as we must ultimately in every case, unless we are to continue to utilize fictions, or unless we are to dispose of the case on a narrow point of procedure or pleading, to a balancing of interests. On the one hand we have a wife deprived of the affection of her husband, his companionship, his society, possibly deprived even of her opportunity to bear sons and daughters. On the other, we have a defendant, whose liability because of his act must involve the violation of a duty of care with respect to it, and, furthermore, whose liabilities as a result of his negligent act must have some reasonable limitation. So analyzed, we see the problem not as a unique and peculiar historical anomaly but as a part of a much larger pattern, as a part of a clearly discernible movement in the law. We have long since passed the time when the function of the law “was to keep the peace by regulating or preventing private war [which] only required it to deal with personal violence and with disputes over possession of property.”⁹ We now recognize that “the law protects interests of personality, as well as the physical integrity of the person.” Stewart v. Rudner, 349 Mich 459, 467; Dawson & Harvey, Case's on Contracts and Contract Remedies. In fact we have seen, within onr own lifetimes, the extension of the law’s protection to areas once thought too obscure for recognition, to rights once thought too vague, too ephemeral, too intangible to be capable of legal measurement. Without legislative intervention, as a part, indeed, of the normal and traditional growth of the common law a right of privacy has been accorded protection,⁰ as well as the right of a child to recover damages for injuries sustained prior to birth.¹ We need not elaborate. The standard treatises on torts will furnish many additional examples.

The law moves in halting steps and not equally on all fronts. It proceeds from the simpler cases, such as the intentional infringements, to those more difficult. So it has done with respect to the interest known as consortium. The husband’s action, in the earliest cases, was permitted for loss of consortium due to an intentional injury.² This was the first stage of recovery. At a later date the action was extended to the second stage recovery for an injury negligently inflicted.³ G-enerally speaking, the rights of the wife, as respects her cause of action for loss of her husband’s consortium, are still in what we referred to above as “the first stage of recovery.” She can today perhaps recover for loss of consortium where the defendant acted maliciously or intentionally, but she still may not recover where the injury was merely negligently inflicted.⁴ Possibly it will take the majority of our courts, also, as it did the English courts, scores of decades to move into the second stage of recovery, though it is to be hoped that justice will not be so long deferred.

Relief is extended the wife in the intentional cases, supra, for one basic reason, the interest of society in the protection of the family as the social unit upon which, at least in this country, society rests. Our concern is not with the family of the middle ages, with its tyrannies and abuses, but with the family of today. If this is the interest to be protected, and we conclude that it is, the law’s protection should extend as well to the negligent as to the intentional injury. In each case the loss is equally severe and the importance to our society of the welfare of the family unit outweighs the importance of the defendant’s claims to immunity.

The gist of the matter is that in today’s society the wife’s position is analogous to that of a partner, neither kitchen slattern nor upstairs maid. Her duties and responsibilities in respect of the family unit complement those of the husband, extending only to another sphere. In the good times she lights the hearth with her own inimitable glow. But when tragedy strikes it is a part of her unique glory that, forsaking the shelter, the comfort, the warmth of the home, she puts her arm and shoulder to the plow. We are now at the heart of the issue. In such circumstances, when her husband’s love is denied her, his strength sapped, and his protection destroyed, in short, when she has been forced by the defendant to exchange a heart for a husk, we are urged to rule that she has suffered no loss compensable at the law. But let some scoundrel dent a dishpan in the family kitchen and the law, in all its majesty, will convene the court, will march with measured tread to the halls of justice, and will there suffer a jury of her peers to assess the damages. Why are we asked, then, in the case before us, to look the other way? Is this what is meant when it is said that justice is blind?

No, we see the suffering. But it is urged that the precedents tie us. A wife, said the ancient precedents, could not sue because she was a legal nonentity. And, even if she could, she had no cause of action to assert because a servant has no “right” to the services of her master. But none of this is true today, either as a matter of fact or as a matter of law. The married women’s acts⁵ and common constitutional provisions have wrought a revolutionary change. Legally, today the wife stands on a par with her husband. Factually, as we well know, her position is no less than that of an equal partner. The precedents of the older cases are not valid precedents. They are violative of women’s statutory rights and constitutional safeguards. They are out of harmony with the conditions of modern society. They do violence to our convictions and our principles. We reject their applicability.. The reasons for the old rule no longer obtaining, the rule falls with it. The obstacles to the wife’s action were judge-invented and they are herewith judge-destroyed. We conclude that the wife before us has pleaded a cause of action.

So far as Blair v. Seitner Dry Goods Co., 184 Mich 304 (LRA 1915D, 524, Ann Cas 1916C, 882), and Harker v. Bushouse, 254 Mich 187, may be interpreted as authority otherwise, they are overruled.

Reversed and remanded for further proceedings not inconsistent herewith. Costs to appellant.

Black, Edwards, and Kavanagh, JJ., concurred with Smith, J.

1 We get the ease upon the lower court’s grant of defendant’s motion to dismiss the declaration upon the ground that it stated no cause of action under Michigan law.

2 Lippman, The Breakdown of Consortium, 30 Columbia L Rev 651, 068.

3 Bouvier, Law Dictionary (3d rev), Consortium.

4 See Golden v. R. L. Greene Paper Co., 44 RI 231 (116 A 579, 21 ALR 1514). Cf. Blair v. Seitner Dry Goods Co., 184 Mich 304 (LRA 1915D, 524, Ann Cas 1916C, 882).

5 See Hitaffer v. Argentine Co., Inc., 87 App DC 57 (183 F2d 811, 23 ALR2d 1366); Cooney v. Moomaw, 109 F Supp 448; Missouri Pacific Transportation Co. v. Miller, 227 Ark 351 (299 SW2d 41); Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga App 519 (77 SE2d 24); Acuff v. Schmit, 248 Iowa 272 (78 NW2d 480); Hipp v. E. I. Dupont de Nemours & Co., 182 NC 9 (108 SE 318, 18 ALR 873), later over ruled in Hinnant v. Tidewater Power Co., 189 NC 120 (126 SE 307, 37 ALR 889); Hoekstra v. Helgeland, 78 SD — (98 NW2d 669). Also of interest are the opinions in McDade v. West, 80 Ga App 481 (56 SE2d 299) (evenly divided); Burk v. Anderson, 232 Ind 77 (109 NE2d 407); Bernhardt v. Perry, 276 Mo 612, 632 (208 SW 462, 13 ALR 1320) (dissenting opinion); Landwehr v. Barbas, 241 App Div 769 (270 NYS 534) (dissenting opinion), aff’d, 270 NY 537 (200 NE 306).

Comment in texts and law reviews has favored almost unanimously recovery by a wife for loss of consortium. See, in particular, 1 Harper and James, Torts, § 8.9; Prosser, Torts (2d ed), § 104; Fridman, Consortium as an “Interest” in the Law of Torts, 32 Can B Rev 1065; Holbrook, The Change in the Meaning of Consortium, 22 Mich L Rev 1; Lippman, The Breakdown of Consortium, 30 Columbia L Rev 651; Simeone, The Wife’s Action for Loss of Consortium — Progress or No?, 4 St. Louis U LJ 424.

6 Holmes, The Common Law p 5:

“The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the eourse of centuries the customs, belief, or necessity disappear, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts' itself to the new reasons which have been found for it, and centers on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.”

7 Hunter, Introduction to Roman Law (9th ed 1934), p 30.

8 Ball v. Ball, 2 Sim 35 (57 Eng Rep 703).

9 5 Bracton, DeLegibus (Twiss ed 1878), p 423.

0 Acuff v. Schmit, 248 Iowa 272, 278 (78 NW2d 480, 484). See, also, Casner & Leach, Cases on Property, p 283.

1 2 Blackstone, Commentaries, *433-*436.

2 1 Bishop, Married Women (1873 ed), § 39.

3 Hyde v. Scyssor, Cro Jac (2 Cro) 538 (79 Eng Rep 462); Guy v. Livesey, Cro Jac (2 Cro) 501 (79 Eng Rep 428); 8 Holdsworth, A History of English Law (2d ed 1937), pp 429, 430.

4 1 Blackstone, Commentaries, *442.

5 Hodsoll v. Stallebrass, 11 Ad & E 301 (113 Eng Rep 429); Robert Marys’s Case, 9 Co Rep 111b, 113a (77 Eng Rep 895, 898, 899).

6 See Lippman, The Breakdown of Consortium, 30 Columbia L Rev 651, 653.

7 3 Blackstone, Commentaries, *142, *143.

8 Cardozo, The Growth of the Law, pp 105, 106.

9 Feneff v. New York Central & H. R. R. Co., 203 Mass 278 (89 NE 436, 24 LRA NS 1024, 133 Am St Rep 291), relied upon in Blair v. Seitner Dry Goods Co., 184 Mich 304 (LRA 1915D, 524, Ann Cas 1916C, 882).

0 See Cooney v. Moomaw, 109 F Supp 448, 451:

“This is a matter which the court may appropriately take care of at the time of trial, if necessary, by limiting through proper evidentiary rulings and instructions to the jury the wife’s recovery to such elements of damage as her loss of the husband’s society and affection and the expenses to which she has been put in caring for him.”

1 See, eg., Lockwood v. Lockwood, 67 Minn 476 (70 NW 784); Cooley, Torts (2d ed), pp 266, 267 (*227, *228). In Guevin v. Manchester Street Ry., 78 NH 289, 292 (99 A 298, 300, LRA 1917C, 410), a negligence ease, the court said:

“The action itself was per quod consortium amisit, not per quod servitium. Loss of service as the only basis of legal right was then recognized and discussed in eases for the seduction of a child or servant, but nowhere is such a statement found as to the right of a husband to recover for injuries to his wife. Undoubtedly the term consortium included service, but it also included society, comfort and the sexual rights. In no early ease is there a suggestion that any one of these is superior to any other as a basis for legal redress.”

2 Statutes in some States, Michigan among them, bar such actions. E.g., CL 1948, §§ 551.301-551.311 (Stat Ann 1957 Eev §§25.191-25.201).

3 Pierce v. Crisp, 260 Ky 519 (86 SW2d 293). A husband has a eause of action against his wife's seducer, although he condones her offense. Smith v. Hockenberry, 138 Mich 129. Thus, a showing of loss of services is not required. Hitaffer v. Argonne Co., Inc., 87 App DC 57 (183 F2d 811, 815-819, 23 ALR2d 1366).

4 See Const 1908, art 16, § 8.

5 Tobiassen v. Polley, 96 NJL 66 (114 A 153).

6 See Simeone, The Wife’s Action for Loss of Consortium — Progress or No?, 4 St. Louis IT LJ 424, 430.

7 See Harker v. Bushouse, 254 Mich 187, 195; Blair v. Seitner Dry Goods Co., 184 Mich 304 (LRA 1915D, Ann Cas 1916C, 882).

8 Prosser, Torts (2d ed), § 104, at 704.

9 Pound, An Introduction to .the Philosophy of the Law, p 241-.

0 Pallas v. Crowley, Milner & Co., 322 Mich 411. See, also, Hawley v. Professional Credit Bureau, Inc., 345 Mich 500 (dissenting opinion 508).

1 See Williams v. Marion Rapid Transit, Inc., 152 Ohio St 114 (87 NE2d 334, 10 ALR2d 1051), relying upon § 16, art 1 of the Ohio State Constitution (1851) providing that “all courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due process of law, and shall have justice administered without denial or delay.”

2 Guy v. Livesey, Cro Jac (2 Cro) 501 (79 Eng Rep 428).

3 See cases cited in Hoekstra v. Helgeland, 78 SD — (98 NW2d 669).

4 See Sheard v. Oregon Electric Ry., 137 Ore 341 (2 P2d 916).

5 E.g., CL 1948, §§ 612.5-612.7 (Stat Ann §§ 27.657-27.659).