Nash v. Mobile O.R. Co.

116 So. 100, 149 Miss. 823, 59 A.L.R. 676, 1928 Miss. LEXIS 95

• Court: Mississippi Supreme Court
• Decided: March 19, 1928
• Docket: No. 26944.
• Status: Published

Opinion

Pack, J.

Cecil Nash, husband of appellant, sustained • a personal injury due to one of appellee’s trains colliding with his automobile at a crossing. He recovered a judgment against appellee for his injury, and same was paid. Appellant, Ms wife, later filed this suit. She suffered no physical injury, but alleged in her declaration that the injury to her husband almost totally destroyed his hearing, “thereby causing plaintiff to lose the social pleasure and relations and companionship of her husband, making it impossible for plaintiff to carry on and enjoy communication by and with her husband through ordinary conversational tones, and making it impossible, since .said injury, for the plaintiff to enjoy private and sacred conversation with her husband.” The plaintiff, appellant here, proceeded upon the theory that she is entitled to damages per quod consortium amisit.

Appellee challenged her right to recover by demurrer to the declaration, which was, by the trial court, sustained.

Appellant declining to plead further, final judgment was entered for appellee.

The sole question to be determined is the right of appellant to recover for loss of consortium, based upon facts as above set out. Appellant cites no authority in support of her contention, but invokes, by analogy, the doctrine enunciated in Brahan v. Meridian L. & Ry. Co., 121 Miss. 269, 83 So. 467. This case held that the husband could recover in actions for loss of consortium, and the court, speaking through Judge Ethridge, said:

“We think it is clear from the authorities that the husband may recover for such injuries as result in loss to him inflicted upon his wife even where the statutes allow the wife to recover for injuries to herself in her own name, as our statute does. Construing our statutes on husband and wife as a whole, we are satisfied that the plaintiff was entitled to recover for consortium, and that the court below erred in excluding from the jury this element of damages. We do not think the statute was intended to displace the husband as the head of the family, nor affect his rights to the domestic services which the wife renders, or would render but for her injuries.”

Section 2185, Hemingway’s 1927 Code (section 2051, Hemingway’s 1917 Code; section 2517, Code of 1906), reads as follows:

“Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on tbe rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married.”

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 commondaw disabilities as our Code section, supra.

Our state was the first to lift womanhopd 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.

Keeping in mind the source from which the wife acquires the right, rather than whether the right existed at all, we should have no difficulty in reconciling the apparent conflict of cases seemingly akin to the case at bar.

In Emerson v. Taylor, a well-reasoned case from Maryland Court of Appeals, 133 Md. 192, 104 A. 538, 5 A. L. R. 1045, it is said:

“A close examination of the adjudications discloses that these group themselves under several distinct heads; the differences of opinion arising, as was held in the case of Wolf v. Frank, 92 Md. 138, 48 A. 132, 52 L. R. A. 102, from the source from which the married woman acquires the right, rather than whether the right existed at all. In the case just mentioned the suit was brought by a married woman to recover damages for the alienation of the affections of her husband, and this court held that the law .cannot make redress in such eases otherwise than to the married woman solely, apart from all others, and especially her husband. In such cases, the injury to the woman is direct, and hence of legal necessity the damages must be to her solely, and therefore the suit cam be maintained in her own name. In some of the cases of this description, the basis upon which the recovery is allowed is that an injury of this character involves the legal idea of malice, even if there be no actual malice; that the husband cannot be said to have been damaged, or have recovery therefor, and that, therefore, a suit by a married woman alone, in cases of alienation' of affections, enticement, or seduction of the husband, are held to give the wife the right of action. This right of action, sustained in Wolf v. Frank, supra, is said in some of the cases to have been a right existing at common law, as well as under married women’s statutes; but, however this may be, in this class of cases it is a rule which has been adopted quite generally, of which the following cases are examples: Bassett v. Bassett, 20 Ill. App. 543; Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 L. R. A. 623; Hodgkinson v. Hodgkinson, 43 Neb. 629, 61 N. W. 577, 27 L. R. A. 120, 47 Am. St. Rep. 759; Gernerd v. Gernerd, 185 Pa. 233, 39 A. 884, 40 L. R. A. 549, 64 Am. St. Rep. 646; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Jaynes v. Jaynes, 39 Hun. 40; Logan v. Logan, 77 Ind. 558, contra; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, 8 L. R. A. 420, 20 Am. St. Rep. 79; Lonstorf v. Lon storf, 118 Wis. 159, 95 N. W. 961; Jacobsen v. Siddall, 12 Or. 280, 7 P. 108, 53 Am. Rep. 360,” and many others.

The right of the wife to sue in this sort of case, that is, for alienation of affections, is well recognized. It is a direct wrong to her. The case at bar cannot be so classified.

In 13 R. C. L. 1443, section 493, we find the following-clear statement of the rule:

“In the United States it is the better view that though .a wife is given the right to sue alone for injuries affecting her rights, and though she has such a legal right in the so-called ‘consortium’ of her husband that she may have a right of action against a third person when such right is directly invaded, yet, in the case of a personal injury inflicted upon a husband by the negligent act of another, thougli such act indirectly results in the loss or impairment of her right of consortium, and the ability of the husband to support her, she cannot maintain an action therefor; the remedy for such wrong is to be redressed solely, by an action by the husband to recover his damages; and the wrong to the wife whicRmay be redressed by her action for loss of consortium or support is restricted to those which have a direct tendency to deprive the wife of her right in this respect. ’ ’

We notice some of the cases in our sister states which have equally as liberal statutes as our own. The supreme court o'f New Jersey in Tobiassin v. Polley, 96 N. J. Law, 66, 114 Atl. 153, held as follows:

“The weight of authority to be gleaned from the reported cases in our sister states is that a wife cannot maintain an action in her own name for the loss of her .husband’s services, including- the rigjrt of consortium, resulting from personal injury to him caused by the negligence of a stranger, and not the result of a malicious interference with the society, companionship, and right of consortium of her husband. It was so held in the following cases: Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N. E. 204, L. R. A. 1916E, 700, Ann. Cas. 1918D, 206; . . . Brown v. Kistleman et al., 177 Ind. 692, 98 N. E. 631, 40 L. R. A. (N. S,) 236; . . . Emerson et al. v. Taylor, 133 Md. 192, 104 A. 538, 5 A. L. R. 1045.”

In Kosciolek v. Portland R. L. & P. Co., 81 Or. 517, 160 P. 132, the Maryland court held:

“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. It is only by virtue of statutes that any one has a chose in action not known to the common law. ’ ’

In Cravens v. L. & N. R. Co., 195 Ky. 257, 242 S. W. 628, the court of appeals of Kentucky said in part:

“It is sufficient to say that it is settled by the decided weight of authority that, while the wife may recover for the loss of the consortium of her husband due to an intentional wrong or a direct attack on the marriage relation, as for the alienation of the husband’s affections, and the like, . . . yet, in the absence of a statute conferring the right, no recovery can be had for the loss of consortium due merely to a negligent injury, and a married woman’s act, giving her a right to hold separate property and to sue alone, confers no new right of action, but only the power to sue for the protection of rights which she already had.”

The supreme court of New York, in Goldman v. Cohen, 30 Misc. Rep. 336, 63 N. Y. S. 459, in part said:

“Her loss is that which usually occurs to a wife from the illness of a husband, in the deprivation of support and consortium, and the need of her personal care for him during his sickness. No case is cited where the wife recovered upon such a claim, and the absence of precedent, where such demands might have been numerous, if sustained by the law, goes far to the belief that such, negligence has never yet been embraced within the circle of causes of action recognized by law, beyond the right given to the injured one, and its survival to the! consort and next of kin in the event of his death.”

The supreme court of Indiana in Brown v. Kistleman, 177 Ind. 692, 98 N. E. 631, 40 L. R. A. (N. S.) 236, quoting and approving the case of Goldman v. Cohen, supra, in its entirety, further held:'

“In such cases, no question of negligence is involved. The recovery is for an injury intentionally inflicted, and is not limited to compensation, but may be for punitive damages as well. The question here involved has rarely been presented to courts of appeal, and, so far as we are able to discover, when presented, a recovery has been denied. ’ ’

Numerous other cases announcing the same views could be reviewed, but it would protract this opinion unnecessarily.

Dealing with the same question are Bernhardt v. Perry, 276 Mo. 612, 208 S. W. 462, 13 A. L. R. 1320, from the; supreme court of Missouri; Smith v. Nicholas Bldg. Co., supra; Nieberg v. Cohen, 88 Vt. 281, 92 A. 215, L. R. A. 1915C, 483, Ann. Cas. 1916C, 476, from the supreme court of Vermont, all cited in appellant’s exhaustive brief. The only case to the contrary that we have found after extended research is Hipp v. Dupont de Nemours & Co., 182 N. C. 9, 108 S. E. 318, 18 A. L. R. 873, from the supreme court of North Carolina, decided in 1921. The same court four years thereafter, in Hinnant v. Tide Water Power Co., 189 N. C. 120, 126 S. E. 307, 37 A. L. R. 889, reached the opposite conclusion, and while the latter case does not expressly overrule the former, yet in referring to the Hipp case, the court said:

“After dilig’ent research, we have failed to find a single decision (apart from the intimation in Hipp v. E. I. Dupont de Nemours & Co., supra), which approves the wife’s right to recover damages for the loss of consortium under the circumstances appearing in the instant case, and to sanction such right of recovery would be tantamount to the recognition of a doctrine utterly at variance with the most enlightened judicial opinion prevailing in other jurisdictions.”'

This effectually, destroys the Hipp case as a precedent, and places that court in accord with the overwhelming weight of authority.

We conclude that section 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.

The court below was not in error in sustaining appellee’s demurrer.

The judgment of the court below will be affirmed.

Affirmed.