Greene, Thomas C.

English

University of Kentucky

Kentucky Law JournalVolume 52 | Issue 4 Article 111964Husband and Wife--Damages--Wife's Right toDamages for Loss of Consortium Due to NegligentInjury of HusbandThomas C. GreeneUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationGreene, Thomas C. (1964) "Husband and Wife--Damages--Wife's Right to Damages for Loss of Consortium Due to Negligent Injuryof Husband," Kentucky Law Journal: Vol. 52 : Iss. 4 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol52/iss4/11RECENT CASESHUSBAND AND WIFE-DAMAGES-WIFE'S RGTrr To DAMAGES FOR LossOF CONSORTIUM Dui TO NEGLImENT INJURY OF HUSBAND.-The plaintiff'shusband was injured when his vehicle was struck at a railroad crossing.The defendant railroad had been found negligent in a previous action,1and bad been held liable to the husband for his injuries. The wife,suing for loss of consortium, urged the court to reconsider its previousstand denying the wife a cause of action growing out of the injurynegligently inflicted upon her husband,2 on the ground that otherjurisdictions have recently allowed such an action.3 Held: Judgmentfor defendant affirmed. "Since there is a diversity of opinion amongthe courts in other jurisdictions and this court... having regard forstare decisis, we affirm the judgment." Baird v. Cincinnati, N. 0. & T.Pac. R.R., 368 S.W.2d 172, 174 (Ky. 1963).Consortium is defined as the conjugal fellowship of husband andwife.4 The concept of a cause of action for the loss of this fellowshiporiginated during a period of history when the wife had few legalprivileges. She could neither sue nor be sued. She could not ownproperty as she was property of her husband. The action forconsortium was based on this proprietary interest which husbands hadin their wives. Interference with consortium was an interference withthe natural use of property and constituted actionable trespass uponthat property right.5 The wife had no corresponding property interestin the husband, and therefore she was given no right of action for aninterference with her consortium. 6After the passage of the Married Woman's Acts,7 the courts wereforced to consider whether a wife should be allowed a cause of actionfor the loss of, or interference with, her consortium. Prior to 1950,the courts almost uniformly held such a right did exist in case of1 Baird v. Cincinnati, N.O. & T. Pac. Ry., 315 F.2d 717 (6th Cir. 1963).2 Cravens v. Louisville & N. Ry., 195 Ky. 257, 242 S.W. 628 (1922); LaEasev. Cincinnati, N. & C. Ry., 249 S.W.2d 534 (Ky. 1952).3 Dini V. Naiditch, 20 InI. 2d 406, 170 N.E.2d 881 (1963); Montgomery v.Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960); Brown v. Ga.-Tenn. CoachesInc., 88 Ga. App. 519, 77 S.E.2d 24 (1953); Acuff v. Schmit, 248 Iowa 272, 78N.W.2d 480 (1956); Missouri P. Transportation Co. v. Miller, 227 Ark. 351, 299S.W.2d 41 (1957); Hitaffer v. Argonne Co. 87 App. D.C. 57, 183 F.2d 811,cert. denied 340 U.S. 852 (1950).4 Black, Law Dictionary 382 (4th ed. 1951); In Dini v. Naiditch, supra note3, at 891, the court said, 'Consortium includes in addition to material sources,elements of companionship, felicity, and sexual intercourse, all welded into aconceptual unity.'G Holbrook, The Change in the Meaning of Consortium, 22 Mich. L. Rev. 1(1923).0,8 Holsworth, A History of English Law 427 (2d ed. 1937); 1 Blackstone,Commentaries 442.7 See, e.g., Ky. Acts ch. 52 §§ 505, 506 (1894), now KRS 404.010 (1954).KETUCKY LAw JouRNALintentional interference, 8 but that no such right existed in cases ofnegligent interference.0 Reasons advanced for denying recovery forloss of, or interference with, a wife's consortium in negligence caseswere: (1) possibility of double recovery since a husband can recoverin his own action for his diminished ability to support his family; (2)unforeseeabiity and remoteness of the injury; and (3) the theorythat a wife has no right corresponding to a husband's right to herservices.' oHitaffer v. Argonne,'. a 1950 federal court decision, made a com-plete departure from the prevailing rule and allowed a wife to recoverfor the loss of the consortium of her husband as a result of hisnegligent injury.12 The court, after an extensive review of the priorlitigation on the subject, found that consortium consisted of morethan just material services,' 3 and found love, affection, and sexualrelations to be predominant elements, the loss of which were a directdamage to a wife. Refusing to be bound by stare decisis, the courtfound that the reasons advanced for denying a wife a cause of actionfor negligent interference with her right to consortium were in-sufficient. 14The legal logic of the Hitaffer case is irrefutable. It reflects thesame thinking and reaches the same conclusion as the major treatiseson the subject.'5 The effect of the case has been to spearhead a trendtoward allowing the wife equal recovery with the husband for loss of8 See, e.g., Clark v. Hill, 69 Mo. App. 541 (1897); Turner v. Heavrin, 182Ky. 65, 206 S.W. 23 (1918).9 Feueff v. New York Cent. & H. f.Ry., 203 Mass. 278, 89 N.E. 436, (1909);Stout v. Kansas City Terminal R.R., 172 Mo. App. 113, 157 S.W. 1019 (1913);Cravens v. Louisville & N. R.R., 195 Ky. 257, 242 S.W. 628 (1922).10 Baird v. Cincinnati, N.O. & T. Pac. R.R., 368 S.W.2d 172, 173 (Ky. 1963).1187 App. D.C. 57, 183 F.2d 811 (D.C. Cir. 1950), cert. denied 340 U.S.852 (1950).12 The Hitaffer case has been overruled in part by Smither & Co. v. Coles,100 U.S. App. D.C. 68, 242 F.2d 220 (D.C. Cir. 1957), where the court saidthat a wife of an employee who received full benefits under a workmen's com-pensation statute was barred from recovering from the employer for loss ofconsortium in view of the statute.18 The idea that consortium is made primarily of material services and thatthis loss is compensated for in the husband's separate action is one advanced bymany courts in denying the wife a cause of action. Those courts fear that toallow the wife's action would result in double recovery. See, e.g., Marri v. Stam-ford St. Ry., 84 Conn. 9, 78 Atl. 582 (1911).14 Among the reasons advanced for denying recovery, other than doublerecovery and remoteness of injury are: if a cause of action is to be allowed thewife, it must come from the legislature. Ash v. 5.5. Mullon Inc., 43 Wash. 2d345, 261 P.2d 118 (1953); no right of recovery in wife for loss of sentimentalservices, Stout v. Kansas City Terminal Ry., 172 Mo. App. 113, 157 S.W. 1019(1913).15Prosser, Torts 704 (2d ed. 1955); 1 Harper & James, Torts 635 (1st ed.1956); Annot., 23 A.L.R.2d 1378 (1952).[Vol. 52,RECENT CASESconsortium. Eleven state courts16 and several federal district courtshave considered the problem since 1950, and basing their verdictson the reasoning of the Hitaffer case, have overruled contrarydecisions and allowed the wife a cause of action. During this sameperiod, seventeen states refused to follow the Hitaffer case.'7The principal case is the second time the question of a wife's rightto recover for the negligent interference with her right to consortiumhas been before the Kentucky court since the Hitaffer decision. In1952, in LaEase v. Cincinnati, N. & C. Ry.,18 the court, while acknowl-edging the Hitaffer decision, felt bound by stare decisis and deniedrecovery without any discussion of the actual problem involved. Inthe principal case, the court made a complete examination of theproblem involved and the progress of the law on the subject, takingspecial note of the progress since 1950 and the Hitaffer case. Thecourt in its closing paragraph summed up its findings:In the present age the distinction between the right of a wife andof a husband to maintain the action is at odds with reason. The samemay be said as to the inconsistency inherent in recognizing a wife has acause of action for the impairment of consortium where her husband'sinjury was the result of an intentional or malicious wrong, but notwhere it is the result of negligence. Nevertheless, since there is adiversity of opinion among the courts in other jurisdictions and thiscourt has heretofore expressly declined to depart from its earlier decision,having regard for the doctrine of stare decisis, we affirm the judgment.19It is felt that the court placed undue weight on the doctrine ofstare decisis20 and it is urged that at its next opportunity the courtbestow upon the wife this right of action for the negligent inter-ference with her consortium.Thomas C. GreeneCONTRACrS-CONSiDERATION-EFFECr OF SUBSEQUENT COMPROMISE FORMomE MoNEY.-The defendant advertised for subcontractor bids onvarious phases of a large construction project. The plaintiff, a sub-contractor, submitted a bid to the defendant, and was subsequentlyadvised that its figure would be used in defendant's bid. The de-16 Baird v. Cincinnati, N.O. & T. Pac. R.R., supra note 10, at 174.17 Ibid.18 249 S.W.2d 534 (Ky. 1952).10 Baird v. Cincinnati, N.O. & T. Pac. R.R., supra note 10, at 174.2 0 "It is as much the duty of this court to restore a right which has beenerroneously withheld by judicial opinion as it is to recognize it properly in thefirst instance. We do indeed have a 'charge to keep', but that is not a charge toperpetuate error.... " Felton Judge, in Brown v. Ga.-Tenn. Coaches, Inc.,88 Ga. App. 519, 527; 77 S.E.2a 24, 82 (1953).1964]

Husband and Wife--Damages--Wife\u27s Right to Damages for Loss of Consortium Due to Negligent Injury of Husband

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Husband and Wife--Damages--Wife\u27s Right to Damages for Loss of Consortium Due to Negligent Injury of Husband

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