Where the loss of her husband\u27s consortium is the result of personal injuries caused by the mere negligence of a third person, the wife has no cause of action; she did not have such right at common law and no legislation has been enacted to give her this right. Nevertheless, at the same time that this right is denied to the wife, her husband has a cause of action under identical circumstances. In such a case, the gist of the action is the loss of his wife\u27s services, and the right has not been affected by legislation which has abrogated the common law disabilities of the wife

Taylor, James B.

English

Cleveland-Marshall College of Law

Cleveland State UniversityEngagedScholarship@CSUCleveland State Law Review Law Journals1952Husband and Wife-Consortium Right of Action inWife for Negligent Injury to HusbandJames B. TaylorFollow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrevPart of the Law and Gender Commons, and the Torts CommonsHow does access to this work benefit you? Let us know!This Note is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in ClevelandState Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.Recommended CitationNote, Husband and Wife-Consortium Right of Action in Wife for Negligent Injury to Husband, 1 Clev.-Marshall L. Rev. 73 (1952)NOTESHusband and Wife- Consortium'- Right ofAction in Wife for Negligent Injury toHusbandby James B. Taylor*P LAINTIFF, Lucia Hitaffer, brought an action for damagesagainst The Argonne Company, Inc., employer of her husband,for her loss of consortium due to the injuries received by herhusband through defendant's negligence. Held: A wife has agood cause of action for loss of consortium due to a negligent in-jury of her husband. 2The decision in the principal case is, to the knowledge of thewriter, the only one so holding in the United States. In spite ofthe absence of such decisions, all who are faced with this partic-ular aspect of the law are puzzled. They are puzzled because thehusband is allowed a cause of action for the loss of his wife'sconsortium due to a negligent injury; yet, under identically thesame circumstances, the wife is denied a cause of action.A view of the common law status of the wife as noted inSheard v. Oregon Elec. Ry. 3 shows why the courts were thenjustified in allowing the husband to recover and denying such aright to the wife.* JAMES B. TAYLOR received his B. S. in Business Administration fromWilberforce University, was inducted into the Army in 1942 and com-missioned in August 1943. He served in the European Theatre of Operationsand was discharged with the rank of Captain in 1946. He is presentlyemployed by the Ohio Bureau of Unemployment Compensation as Regis-tration and Claims Supervisor, and is a second year student at Cleveland-Marshall.'Consortium may be defined as being the right each spouse has to thecompanionship, affection, society, co-operation and aid of the other spouse(but does not include right of services of wife in her husband).'Hitaffer v. Argonne Co., 183 F. 2d 811 (D. C. Cir. 1950), (reversing theUnited States District Court for the District of Columbia).'137 Ore. 341, 2 P. 2d 916 (1931). Plaintiff, a widow, brought an actionagainst defendant for the loss of consortium of her husband whose injuryand subsequent death, she alleged, occurred through the negligence of thedefendant. Plaintiff contended that the MARRIED WomEN's ACT had abrogatedthe common law disability of the wife, thus giving her a good cause ofaction. Defendant demurred, contending that the pleading did not statefacts sufficient to constitute a cause of action. Demurrer was sustained by theCircuit Court and further sustained on appeal to the Supreme Court.The Court in pointing out that the MARRIED WOMEN'S ACT does notentirely abrogate the common law status of the wife cites her common lawstatus:"In bygone generations when the customs, conduct, and beliefs of theEnglish people were crystallizing themselves into the rules of human con-duct . . . known as the common law, a woman was not regarded socially1Published by EngagedScholarship@CSU, 1952CLEVELAND-MARSHALL LAW REVIEWLegislative enactment of laws emancipating married women-commonly called the MARRIED WOMEN'S ACT 4 - tended to removemany of the common law disabilities. In Ohio an act was passedin 1877 which for all practical purposes emancipated a wife fromcontrol of her husband. It placed her on an equal footing withhim in respect to their rights and obligations. 5 Under these stat-utes she may enter into any engagement or transaction with herhusband or any other person, which either might if unmarried.This being so, it is difficult to understand why the courts deny herrelief when the loss of her husband's consortium is due to a neg-ligent injury.Ohio Courts have construed the above statutes as giving awife a cause of action for loss of her husband's consortium whenthe loss or injury is due to a wilful, malicious or intentional act.6Defamation of a wife's character causing alienation of her hus-band's affection and a deprivation of his consortium is also abasis for relief.7 The action was allowed also where the husbandwas driven insane by a third party's threats of violence.8or civilly the equal of her husband. He had the right to her labor andservices. It was her duty to administer to him in all relations of domesticlife, including the rearing of his children and the maintenance of his house-hold. Marriage operated as a suspension, for most purposes, of the legalexistence of the wife. In those days husband and wife were regarded asone-and he was that one. That contemplation of the married womancreated in her various disabilities; her inability to contract; to maintainan action in her own name, etc. With much truth it has been said that inthose bygone days the relationship between husband and wife was that of aliege lord and his vassal. Such being the manner in which the law re-garded husband and wife, it can readily be understood why a husbandcould maintain an action for the loss of consortium of his wife withoutthere being available to the wife a similar action . .'Ohio General Code Sec. 8002-1 et Seq.'Shively v. Shively, 54 Ohio L. Abs. 527, 88 N. E. 2d 280 (1948).'Flandermeyer v. Cooper, 85 Ohio St. 327, 98 N. E. 102, 40 L. R. A. (N. S.)360 (1911), Ann. Cas. 1913A, 913. Plaintiff, Lillie M. Cooper, sought damagesagainst defendant, Henry H. Flandermeyer, a pharmacist, for the malidiousand wrongful sales of morphine to her husband, contending that such salesand subsequent use of the drug rendered her husband incapable of con-sortium. Held: A good cause of action is stated. Damages will be allowedfor loss of consortium resulting from a malicious or wilful injury.'Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397 (1878). Plaintiff,Cassander Westlake, sought damages from defendant, Joseph Westlake,father of her husband, contending that defendant malici(,usly spoke of heras being an unchaste woman, causing her husband to become alienatedfrom her, and to despise her and to refuse to live with her. Held: A goodcause of action is stated.'Clark v. Hill, 69 Mo. App. 541 (1897). Where defendant, with the abilityto do so, threatened to hang plaintiffs husband, causing such fear in thehusband as to drive him insane. Held: The act gives rise to a cause ofaction.2https://engagedscholarship.csuohio.edu/clevstlrev/vol1/iss1/10NOTESWhere the loss of her husband's consortium is the result ofpersonal injuries caused by the mere negligence of a third person,the wife has no cause of action; she did not have such right atcommon law and no legislation has been enacted to give her thisrightY Nevertheless, at the same time that this right is denied tothe wife, her husband has a cause of action under identical cir-cumstances. 10 In such a case, the gist of the action is the loss ofhis wife's services, and the right has not been affected by legisla-tion which has abrogated the common law disabilities of thewife.1 This anomaly of the law indicates a change.The reasons for denying a wife a right equivalent to that ofher husband do not seem logical when viewed in the light ofpublic policy. The most common reason is predicated upon thefinding that no legislation has been enacted to give her this right. 12In Flandermeyer v. Cooper where the wife's action based onmalice was allowed, the reasoning of the court seems broadenough to fit situations in which the injury is due to negligence. 13Nonetheless, the overwhelming weight of authority is contraryto allowing the wife such a cause of action 14 and would indicatethat the question is a settled one. However, the opposite isfortunately true. In 1913 an Ohio court (Superior Court of Cin-'Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N. E. 204 (1915). Plaintiff,Edna H. Smith, sought damages against the defendant, The Nicholas Bldg.Co., for injuries received by her husband, Floyd J. Smith, while riding onan elevator in defendant's office building, such injuries being due todefendant's negligence. Plaintiff contended that as a result of these negligentinjuries her husband was crippled for life and rendered incapable ofconsortium. Held: A wife has no right of action against a person for theloss of the consortium of her husband caused by personal injuries sustainedby him through the negligence of such person."Smith v. Nicholas Bldg. Co., supra note 9."Ibid."Ibid.Note 6, supra, at page 337. "A statutory right cannot change except byaction of the law-making power of the state. But it is the boast of thecommon law 'Its flexibility permits its ready adaptability to the changingnature of human affairs,' so that whenever, either by growth or developmentof society or by the statutory changes of the legal status of any individual,he is brought within the principles of the common law, then it will affordhim the same relief that it has theretofore afforded to others coming withinthe reasons of its rules. If the wrongs of the wife are the same in principleas the wrongs of the husband, there is now no reason why the commonlaw should withhold from her the remedies which it affords the husband.""Tyler v. Brown-Service Funeral Homes Co., 250 Ala. 295, 34 So. 2d 203(1948); Notes 21 A. L. R. 1517 (1922); Feneff v. N. Y. Cent. & H. R. R., 203Mass. 278, 89 N. E. 436, 24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291(1909); Hinnant v. Tidewater Power Co., 189 N. C. 120, 126 S. E. 307 (1925);Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N. E. 204 (1915), L. R. A.1916E, 700 Ann. Cas. 1918D, 206. (A few of the overwhelming majorityof cases so holding.)3Published by EngagedScholarship@CSU, 1952CLEVELAND-MARSHALL LAW REVIEWcinnati), permitted the wife to recover where loss of consortiumwas due to the negligent injury of the husband. 15 In 1915 withoutreferring, however, to the Cincinnati Court's decision, the Su-preme Court of Ohio held that a wife has no cause of action forloss of consortium due to negligent injury of her husband. 16 ANorth Carolina Court in 1921 found for a wife on similar facts 17but four years later it was overruled.' 8 In 1949 the Court of Ap-peals of Georgia was equally divided on the question whether ornot a wife should be allowed a cause of action for negligent injuryof her husband.' 9 Judge Felton in his minority opinion said: "Wedo not think that any of the reasons advanced by the authoritiesfor denying a wife such a right of action are valid. These reasonsseem to be: (1) no statute gives the right, (2) the injury is onefor which the husband can sue, and (3) the injury is remote andconsequential as to the wife. Our answer to (1) is that the com-mon law gives a remedy wherever a right is violated. . . . Ouranswer to (2) is that the wrong is not one for which the husbandcan sue. A husband can sue for his loss of the consortium of hiswife but not for her loss of his society. Our answer to (3) isthat if the injury is not too remote and consequential when thehusband sues for loss of consortium, it is not so when a wife sues.The wrong is a direct wrong to the valuable interest of the wife,whether intentional or not, the damages for which the husbandcannot sue. In these days of increased enlightenment, her rightsshould be recognized and enforced."The farsightedness and wisdom of dissents are seldom wel-comed at the time that they are advanced. Nevertheless, theirforesight is often justified by eventual recognition as majorityrules of law. With this thought in mind, it is well to consider thedissenting opinion of Judge Scudder in Landwehr v. Barbas.20A wife sued for loss of consortium of her husband due to the neg-ligence of a third person resulting in his emasculation. The dis-sent was based on the question: "May a wife maintain such anaction? We know she could not at common law, but in recent1"Avonia V. Griffen v. Cincinnati Realty Co., et al., 27 Ohio Dec. 585, 15Ohio N. P. (N. S.) 123 (1913).1"Smith v. Nicholas Bldg. Co., supra, note 9." Hipp v. E. I. DuPont deNernours & Co., 182 N. C. 9, 108 S. E. 318, 18A. L. R. 873 (1921)., Hinnant v. Tidewater Power Co., 189 N. C. 120, 126 S. E. 307 (1925)."McDade v. West, 80 Ga. App. 481, 56 S. E. 2d 299 (1949).241 App. Div. 769, 270 N. Y. Supp. 534 (1934).4https://engagedscholarship.csuohio.edu/clevstlrev/vol1/iss1/10NOTESyears the status of the wife has changed materially. At commonlaw she could not maintain an action for the alienation of herhusband's affections, nor for criminal conversation. Today shemay.21 . . . In the eyes of our law, marriage is a civil contract.... Shall it be said that one of the parties to the contract, thewife, may be deprived of its fruits through the tort of a thirdperson without the redress accorded to the husband? ... We haverecognized the right of the wife to recover compensation for theloss of her husband's attention, caresses, affection, exclusiveness,then why not for the loss of her right to motherhood within hermarriage contract? . . .For its loss . . . she is entitled to suchcompensation as the law can afford."The decision in the principal case, Hitaffer v. Argonne Co.,Inc., represents an inroad upon the majority rule. Notwithstand-ing the overwhelming weight of authority to the contrary,2 2 ithas been difficult to accept as sound, fair and logical the majorityholdings of these courts.It is recognized that the decision reached in the principalcase is not binding on the several state courts. It is believed,however that in the light of public policy the impact of this deci-sion will manifest itself in the gradual overruling of state casesholding contrary to its views. Moreover, courts formerly feltjustified in denying relief because there was no precedent onwhich to base a decision for relief. They may now use this caseas a basis for allowing the action.Citing Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553 (1899);Oppenheim v. Kridel, 234 N. Y. 156, 140 N. E. 227, 28 A. L. R. 320 (1923)." See note 14, supra.5Published by EngagedScholarship@CSU, 1952

Husband and Wife-Consortium Right of Action in Wife for Negligent Injury to Husband

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Husband and Wife-Consortium Right of Action in Wife for Negligent Injury to Husband

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