Opinion
12-19-1957
Eloyce DESHOTEL, Plaintiff and Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, William M. Floyd, Yellow Cab Company, a corporation, Archie Hughes, First Doe, Second Doe and Black & White Company, Defendants and Respondents. * Civ. 17444.
Eloyce DESHOTEL, Plaintiff and Appellant,
v.
The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, William M. Floyd, Yellow Cab Company, a corporation, Archie Hughes, First Doe, Second Doe and Black & White Company, Defendants and Respondents. *
Dec. 19, 1957.
Rehearing Denied Jan. 17, 1958.
Hearing Granted Feb. 11, 1958.
Plaintiff and appellant is the wife of Dewey Deshotel, Jr. The husband suffered such serious injuries in a collision between a taxi-cab in which he was a passenger and one of respondent's trains that he will be completely incapacitated for life, requiring the daily care of a nurse. See Deshotel v. Atchison, T. & S. F. Ry. Co., 144 Cal.App.2d 224, 229, 300 P.2d 910, for a general description of his condition. For these injuries he recovered a judgment of $290,000 which was affirmed in the cited case.
The wife brought this action alleging that by reason of her husband's injuries she 'has been denied the care, companionship, aid and society of her husband * * * and will be permanently deprived of her husband's consortium * * *.' The trial court sustained respondent's demurrer without leave to amend and plaintiff appeals from the judgment following this order.
The appeal presents a question never decided in this jurisdiction, whether a wife has a cause of action for the loss of her husband's consortium caused by the negligent act of a third person.
Following the dictum in Meek v. Pacific Electric Ry. Co., 175 Cal. 53, 56, 164 P. 1117, 1118 ('* * * aside from consideration of her society, or what is termed the consortium, damages for which are not recoverable in this state * * *') it was at least doubtful in California whether either husband or wife had such a cause of action. The right of the husband to such a recovery has now been settled in his favor by Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003, hearing denied by the Supreme Court. In that case the language above quoted from Meek v. Pacific Elec. Ry. Co., supra, was characterized as an 'inadvertent dictum,' the court adding: 'In view of the failure of the legislature to forbid recovery for such loss, it would be unreasonable to conclude that the loss of enjoyment of the sex relation by either party to a marriage is not recoverable from him who caused such loss.' 136 Cal.App.2d at pages 255-256, 288 P.2d at page 1008. That court concluded (136 Cal.App.2d at page 257, 288 P.2d at page 1009): 'The parties to a marriage are each entitled to the comfort, companionship and affection of the other. Any interference with the right of either spouse to the enjoyment of the other is a violation of a natural right as well as a legal right arising from the marriage relation.' The court cited in support of the latter statement Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, hereinafter discussed.
In view of the alomst complete emancipation of married women from their fuedal condition of servitude to their husbands which existed in the early common law (a matter discussed so ably by the court in Follansbee v. Benzenberg, 122 Cal.App.2d 466, 476-477, 265 P.2d 183, 42 A.L.R.2d 832) logic would seem to dictate that since the wife's right to the companionship, society and sexual relations of her husband are coequal with his she should have a co-equal right with him to recover against the negligent tort feasor whose act has deprived her of them. Were it not for the almost unbroken line of authority in other jurisdictions up to 1950, denying this right to the wife, while conceding it to the husband, we could rest our decision on the Gist and Follansbee cases, above cited. However, relying on the authorities from other jurisdictions denying this right to the wife (see cases collected in the note, 23 A.L.R.2d 1389), respondent argues that the wife had no such right at common law and since none has been expressly granted to her by statute the common law rule is still applicable in California.
The development of the case law in this respect in other jurisdictions has presented an anomaly which the legal writers generally have openly criticized and the courts of several jurisdictions have come to recognize since the decision of the Court of Appeals in the Hitaffer case, supra, 183 F.2d 811. With the general adoption of the so-called Married Women's Acts, emancipating married women from their common-law servitude, the courts of this country generally have agreed that for intentional injury to the right of consortium, as by alienation of affections, criminal conversation and (with greater disagreement) the furnishing of habit forming drugs to the husband, the wife had a cause of action for the injury to the right of consortium resulting therefrom. 42 C.J.S. Husband and Wife § 661, p. 316; § 698a, p. 352; 2 Cooley on Torts, 4th Ed., § 170, pp. 20-24; 1 Harper, The Law of Torts, § 8.3, pp. 611-612; Prosser on Torts, 2d Ed., § 103, p. 691; § 104, p. 705; Rest. Torts, §§ 690, 697. While, until its amendment in 1939, Civil Code section 49 gave to the wife a right of action for alienation of affections (Humphrey v. Pope, 122 Cal. 253, 54 P. 847), in view of the development of the law elsewhere above outlined this may be taken as the codification of a right inhering in the wife at common law (Civ.Code, § 5), and independent of this statute our Supreme Court aligned itself with the majority of the courts of other jurisdictions in giving the wife a cause of action for intentional interference with the right of consortium in Work v. Campbell, 164 Cal. 343, 128 P. 943, 43 L.R.A.,N.S., 581. (Separation from husband induced by fraudulent representations made to the wife by the defendant.) The court in this case held that the cause of action was not dependent on Civil Code, section 49 (164 Cal. at page 346, 128 P. 943) and so the case constitutes a direct holding that independent of any statute the wife has a right in the marital consortium the wrongful interference with which gives her a cause of action against the wrongdoer.
In Eliason v. Draper, 25 Del. 1, 77 A. 572, the Delaware court summarizes the holdings of the courts of various jurisdictions up to that date (1910) on the right of the wife to a remedy for the intentional interference with her right of consortium. The court groups these cases into four classes (77 A. at page 574) as follows: 'The cases in the first class decide that remedial statutes [i. e., Married Women's Acts], such as ours, do nothing more than enable a wife to sue alone only in those cases in which she could sue before with her husband joined. They hold that the nonexistence of a remedy indicates the absence of a right, and, as in an action of this character the wife had no remedy at common law, there is none given her by the statutes. * * * [Citing and Discussing cases.]'
Parenthetically we may point out that our Supreme Court aligned itself against this view in Work v. Campbell, supra, 164 Cal. 343, 128 P. 943, since in that case it recognized the wife's right of action for loss of consortium in the absence of any express statutory authorization.
Continuing the quotation: 'The cases in the second class hold that as the loss of service is not an ingredient of the action, and as the right of a husband and wife to the society of the other is reciprocal, a wife had at common law a right of action for the alienation of her husband's affection, though considered by some to have been held in abeyance, and that she may now maintain such an action in the absence of statute and independent of enabling or remedial enactments. * * * [Citing cases.] 'The cases in the third class hold that notwithstanding the anomalous position in which a married woman found hereself at common law, in not being able to sue in an action of this character without her husband, for one reason, and not being able to sue with him for another reason, those remedial statutes which give to a married woman a right of action in her own name for the redress of her own personal wrongs, torts and injuries are, by such terms, sufficiently comprehensive to include the right to sue when the tort consists in the alienation of her husband's affection. * * * [Citing cases.] 'The cases in the fourth class recognize the right of a husband to the consortium of his wife as a property right, and reason that with respect to matters of conjugal society and affection the husband owes to the wife all that she owes to him; and upon the same principle the wife's right is a property right, which in its broad sense 'includes things intangible and invisible and applies to whatever is exclusively one's own,' for an injury to which she may sue by force of those statutes which empower a married woman to sue for the preservation and protection of her own property as if unmarried. * * * [Citing cases.] 'The confusion of opinion upon this subject evidently has been occasioned by confusing a married woman's rights with her remedies, and considering the removal of her disabilities * * * from the standpoint of her former remedies rather than from the standpoint of her former rights. This question is solved if it be found that at common law the wife had a right to the thing for the enforcement of which the law disqualified her by coverture, and if it also be found that the statutes have relieved her of her disqualifications of coverture and left her with her right undisturbed. * * * 'The right of the wife to the consortium of the husband was likewise recognized at common law * * * though a right of action for its invasion was denied her because of the common-law doctrine of identity of person and its consequent trammels of technical procedure. Nevertheless her right existed, and its existence was recognized and enforced by the ecclesiastical courts in a suit by her for the restitution of conjugal rights * * * 3 Blac.Com. 94; Orme v. Orme, 2 Addams Eccl.Rep. 382; 1 Bishop, M., D. & S. §§ 69, 1357; Burrows v. Burrows, 2 Swabey & T. 303.'
We have quoted from this opinion at length because of its scholarly summation and critical analysis of the development of the law on this subject in our American courts. With some diversity of reason but with almost unanimity of result the American courts have concluded that for intentional interference with the right of consortium under modern conditions a wife has a right of action. Given a right in the consortium equivalent to that of her husband, as these cases must concede, it would logically seem to follow that any invasion of that right for which the husband is given a cause of action should equally result in a cause of action for the wife. But with a sturdy disregard of logic the same courts which granted the wife a correlative cause of action with that of her husband for intentional wrongs affecting the consortium denied to her the same correlative right for interference with the consortium resulting from negligent injuries to the husband while allowing the husband to recover for loss of consortium caused by negligent injuries to the wife. As Professor Prosser points out (Prosser on Torts, 2d Ed. § 105, p. 704): 'The development of the remedy for direct attack upon the marital relation by alienation of affections or criminal conversation, which took place toward the close of the nineteenth century, found no parallel where the interference was indirect, through negligent or even intentional injury to the husband. * * * There has been almost universal condemnation of such a result on the part of legal writers. Obviously it can have no other justification than that of history, or the fear of an undue extension of liability of the defendant, or a double recovery by wife and husband for the same damages. The loss of 'services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband. Nor is any valid reason apparent for allowing her recovery for a direct interference by alienation of affections, and denying it for more indirect harm through personal injury to the husband, where no such distinction is made in his action.'
Similar strictures may be found in 1 Harper, The Law of Torts, section 8.9, pages 641-643; 2 Armstrong, California Family Law, pages 1505--1506; and see the articles cited in Prosser on Torts, 2d Edition, page 704, note 62.
It is not surprising that some judges felt uneasy at this illogical divergence in the developing case law. Occasionally a dissenting judge would find the disparity in reasoning between the cases of direct and indirect injuries to the wife's consortium too strong meat for his mental digestion. E. g., see the dissenting opinions of Scudder, J., in Landwehr v. Barbas, 241 App.Div. 769, 270 N.Y.S. 534, 535, and of Bond, C. J., joined by Williams, J., in Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 467. The North Carolina court in 1921 broke away from the trend in Hipp v. E. I. Du Pont De Nemours & Co., 182 N.C. 9, 108 S.E. 318, but succumbed to the tide again in Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307. That court finally resolved the dichotomy by denying such cause of action to both spouses, thus restoring congruity to the law by depriving the husband of a previously recognized right which it had decided to deny to the wife. Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611. A like course had been taken by a few other courts which similarly gave equality to the operation of the law by also depriving the husband of the right which they had refused to concede to the wife. Marri v. Stamford St. R. Co., 84 Conn. 9, 78 A. 582; Bolger v. Boston Elevated Ry. Co., 205 Mass. 420, 91 N.E. 389; Harker v. Bushouse, 254 Mich. 187, 236 N.W. 222.
Finally in 1949 the Georgia Court of Appeals in McDade v. West, 80 Ga.App. 481, 56 S.E.2d 299, found its members equally divided on the subject and were compelled to rest their decision of the particular case on another ground. In 1950 the Court of Appeals in Hitaffer v. Argonne Co., supra, 183 F.2d 811, in an opinion by Justice Clark, examined the existing authorities at length and concluded that none of the reasons given by the several courts for denying a right to the wife which they conceded to the husband was logical or valid under the modern conditions created by the Married Women's Acts. That court enumerated each of the reasons found in the decisions for denying such a cause of action and pointed out the fallacy of each in the following language (Note: We have, for clarity, somewhat rearranged the order of the language quoted): 1. '* * * (T)hat although in the abstract the term 'consortium' contains, in addition to material services, elements of companionship, love, felicity, and sexual relations, in cases of injury to the consortium resulting from negligence the material services are the predominant factor for which compensation is given. * * * The difficulty with adhering to these authorities is that they sound in the false prmise that in these actions the loss of services is the predominant factor. This distinction lacks precedent. It is nothing more than an arbitrary separation of the various elements of consortium devised to circumvent the logic of allowing the wife such an action. * * * Consortium, although it embraces within its ambit of meaning the wife's material services, also includes love, affection, companionship, sexual relations, etc., all welded into a conceptualistic unity. * * * It is not the fact that one or the other of the elements of consortium is injured in a particular invasion that controls the type of action which may be brought but rather that the consortium as such has been injured at all. * * *' 183 F.2d at pages 813-814.
2. 'Another group of cases * * * hold that in negligent invasions of the consortium the wife has no cause of action because the husband, who is under a legal duty to support his wife * * * recovers in his action * * * for any impairment of his ability to perform his obligation, and thus the wife indirectly recovers for the value of any loss of her consortium. * * * Of course, as we have already pointed out, there is no foundation for the statement that the predominant factor involved in negligence cases of this type is the element of material services. * * * There is more to consortium than the mere services of the spouse. Beyond that there are the socalled sentimental elements to which the wife has a right for which there should be a remedy. We do agree, however, that if the wife is allowed to sue, there could be a double recovery in regard to the service element of consortium, if the husband's recovery is not taken into account in measuring the wife's damages * * *.' 183 F.2d 814.
3. 'That in ngeligence cases the purpose of the damages is to compensate the injured person for the direct consequences of the wrong. The injury to the wife is indirect and so not compensable.' 183 F.2d 814. '* * * As to those authorities which hold that the injury to the wife is not compensable because it is indirect, we simply state that if that be so then it would likewise be true in the husband's suit. But such is not the rule here. Invasion of the consortium is an independent wrong to the spouse so injured. The mere fact that the loss of one or the other of the elements thereof may have been indirectly redressed in another's suit, does not make the injury to the remaining elements any less direct.' 183 F.2d 815.
4. 'That her injuries are too remote and consequential to be capable of measure.' 183 F.2d 814. '* * * The argument * * * fails for two reasons. In the first place, we are committed to the rule in negligence cases that where in the natural and continual sequence * * * an injury is produced which, but for the negligent act would not have occurred, the wrongdoer will be liable. * * * Secondly, if such a rule were valid there could be no basis for distinguishing between an action by a husband and one by the wife. In both cases the damages for the sentimental delements would be too remote and consequential; and yet we do not apply such a rule in the husband's action.' 183 F.2d 815.
5. 'That the common law recognized no cause of action for the loss of the socalled sentimental elements of consortium and the acts have given the wife no new cause of action' (183 F.2d 814) and 6. 'That no action for loss of consortium was ever allowed in which there was no showing of the loss of some services * * *.' 183 F.2d 814-815. '* * * (T)here could be no reason for the allowance of an action for criminal conversation or alienation of affections in cases where the husband condoned the wife's conduct, for obviously there would be no disruption of services; yet under such circumstances, it has been held that [he] may sue the seducer. The same would also be true in cases where it has been held that a husband has a cause of action for criminal conversation though living apart from his wife. Here too there could be no showing of a loss of services. In both cases the only injury to the spouse's consortium lies in the sentimental area. 'Within the rationale of the cases just cited, allowing a husband recovery in cases where he can show no loss of services, lies the destruction of the authorities which hold that the common law recognized no cause of action for the loss of the so-called sentimental elements of the consortium alone, and the cases which further refine the rule by holding that an action for the loss of the sentimental elements cannot be allowed unless there is a showing of a loss of some material services. There is no judicial precedent for these rules, and the allowance of the action where no loss of material service is shown effectively destroys them. 'Finally, there are a few cases which hold that the wife's interest in the marital relation is not a right of property or derived from a contract of bargain and sale and it lies in an area into which the law fill not enter except of necessity.' 183 F.2d 815. 'There can be no doubt * * * that if a cause of action in the wife for the loss of consortium from alienation of affections or criminal conversation is to be recognized it must be predicated on a legally protected interest. Now then, may we say that she has a legally protected and hence actionable interest in her consortium when it is injured from one of these so-called intentional invasions, and yet, when the very same interest is injured by a negligent defendant, deny her a right of action? * * * Such a result would be neither legal nor logical. * * * When a legally protected interest of a person has been injured by the wrongful act of another, it is no less actionable because the invasion was negligent rather than intentional or malicious. * * * 'The desirability of allowing the wife this action is demonstratable from the anomalous situation in which we would otherwise be placed. For how, under any reasoning, could we, while allowing the husband the action, justify a denial to the wife of a like protection to an interest which is exactly the same as his? And how could we justify denying her the action when we allow her a suit in cases of intentional invasions? The simple answer is that there can be no justification.' 183 F.2d 817.
That court expressed its conclusion (183 F.2d 819): 'It is therefore the opinion of this court that in light of the existing law of this jurisdiction, in the light of the specious and fallacious reasoning of those cases from other jurisdictions which have decided the question, and in light of the demonstratable desirability of the rule under the circumstances, a wife has a cause of action for loss of consortium due to a negligent injury to her husband.'
While a majority of the courts which have considered this question since the Hitaffer decision have not been persuaded by it (Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723; Werthan Bag Corp. v. Agnew, 6 Cir., 202 F.2d 119; Filice v. United States, 9 Cir., 217 F.2d 515; Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897; Lockwood v. Wilson H. Lee Company, 144 Conn. 155, 128 A.2d 330; Ripley v. Ewell, Fla., 61 So.2d 420; Seymour v. Union News Company, 7 Cir., 217 F.2d 168; Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407; La Eace v. Cincinnati, Newport & Covington Co., Inc., Ky., 249 S.W.2d 534; Coastal Tank Lines v. Canoles, 207 Md. 37, 113 A.2d 82; Hartman v. Cold Spring Granite Company, 247 Minn. 515, 77 N.W.2d 651; Larocca v. American Chain & Cable Co., 23 N.J.Super, 195, 92 A.2d 811; Don v. Benjamin M. Knapp, Inc., 281 App.Div. 892, 119 N.Y.S.2d 800, 801, affirmed 306 N.Y. 675, 117 N.E.2d 128; Nelson v. A. M. Lockett & Co., 206 Okl. 334, 243 P.2d 719; Josewski v. Midland Constructors, D.C., 117 F.Supp. 681; Garrett v. Reno Oil Company, Tex.Civ.App., 271 S.W.2d 764; Nickel v. Hardware Mutual Casualty Company, 269 Wis. 647, 70 N.W.2d 205; West v. Samuel Fox & Co. (1952) A.C. 716) there is now a respectable minority of courts which have followed the Hitaffer case in holding that a wife has a cause of action for loss of consortium caused by negligent injury to her husband (Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24; Acuff v. Schmit, Iowa, 78 N.W.2d 480; Missouri Pacific Transportation Company v. Miller, Ark., 299 S.W.2d 41; Cooney v. Moomaw, D.C., 109 F.Supp. 448). In many of the cases above cited which have refused to follow Hitaffer in allowing the wife such a cause of action the courts were bound by their own previous decisions. E. g. Franzen v. Zimmerman, supra; Lockwood v. Wilson H. Lee Company, supra; La Eace v. Cincinnati, Newport & Covington Ry. Co., Inc., supra; Coastal Tank Lines v. Canoles, supra; Hartman v. Cold Spring Granite Company, supra; Larocca v. American Chain & Cable Co., supra; Don v. Benjamin M. Knapp, Inc., supra; Nelson v. A. M. Lockett & Co., supra. We are under no such constraint, since the question is undecided in California. We are not limited to a mechanical count of noses, but rather deem it our duty to select the rule supported by logic and better reasoning over the one supported by the mere weight of numerical authority. Cf. People v. Cahan, 44 Cal.2d 434, 439 et seq., 282 P.2d 905, 50 A.L.R.2d 513. The cases from the Federal Courts are of little help since they were either applying established state law, as they are bound to do, or guessing how the state courts would decide. That such a guess is fraught with some peril, compare Werthan Bag Corp. v. Agnew, supra, 202 F.2d 119, with Missouri Pacific Transportation Company v. Miller, supra, 299 S.W.2d 41, where the Circuit Court guessed wrongly that the Arkansas court would deny a recovery to the wife and the Arkansas court afterwards held the other way.
Respondent insists that to give the wife a cause of action in a case like this would result in a double recovery. The wife's loss of companionship, solicitous care and sexual intercourse are personal to her and could not be covered by her husband's recovery. She should not be allowed a recovery for loss of support because this would be covered by the husband's recovery for loss of earnings. Double recovery can be effectively prevented by excluding from the wife's recovery any allowance for the loss of financial support. See Hitaffer v. Argonne Co., Inc., supra, 183 F.2d at page 819; Brown v. Georgia-Tennessee Coaches, supra, 77 S.E.2d at page 31; Cooney v. Moomaw, supra, 109 F.Supp. at pages 450-451.
We are not unmindful that the right to recover for alienation of affections and criminal conversation were abolished by our Legislature in 1939. Civ.Code, § 43.5. This does not militate in any way against the reasoning of those courts which, as in Hitaffer, quoted supra, or those legal writers who, like Prosser, quoted supra, have pointed up the existence of the common-law right of a wife in the consortium as demonstrated by her right to sue for intentional injuries thereto. Further we have pointed out that our Supreme Court recognized such a non-statutory right in the wife in Work v. Campbell, supra, 164 Cal. 343, 346, 128 P. 943. The effect of the adoption of Civil Code, section 43.5 was only to abolish the causes of action therein mentioned and to leave other causes of action unimpaired. Langley v. Schumacker, 46 Cal.2d 601, 297 P.2d 977. That the cause of action for loss of consortium of one spouse by negligent injury to the other spouse is not affected is attested by Gist v. French, supra, 136 Cal.App.2d 247, 288 P.2d 1003.
That the recovery might be community property furnishes no difficulty. Work v. Campbell, supra, 164 Cal. 343, 349, 128 P. 943. The fact that no notice of such cause of action is taken in various provisions of the codes should not be taken as an implied repeal of the common law right. For example Code of Civil Procedure section 427 authorizes in an action for personal injuries to the wife the recovery of '* * * all consequential damages suffered or sustained by the husband alone, including * * * moneys expended * * * by reason of such injury to his said wife * * *' without providing for the recovery of money expended by the wife for the care of her husband. Despite this apparent legislative oversight the court in Follansbee v. Benzenberg, supra, 122 Cal.App.2d 466, 476, 265 P.2d 183, found no difficulty in holding that a wife could recover the amount of her own money expended for the care of her injured husband.
We are satisfied that logic and good reason are with the recent cases above cited which hold that a wife has a cause of action for loss of consortium by the negligent injury to her husband just as the husband has such right of action in the case of negligent injury to his wife. 'Generally a husband and wife have, in the marriage relation, equal rights which should receive equal protection of the law.' Follansbee v. Benzenberg, supra, 122 Cal.App.2d 466, 476, 265 P.2d 183, 189.
We are not impressed with the argument that some settlements made with the husband alone might be upset by our decision. That reasoning would apply equally to the right asserted by the wife in Follansbee, and furthermore no such settlement would have taken into account or compensated for the elements of the wife's loss of consortium for which we hold that she has a right of recovery. Nor can we agree with those courts which hold that such right should not be accorded to the wife by the courts but should await legislative action. Convinced, as we are, that the wife's right in this respect is a logical development of the common law it is our duty so to declare. If our courts had the precedent of earlier contrary decisions to overrule there would be force in the argument that the established rule should not be overturned by the courts but should be left to the Legislature to correct. There are no such decisions in this state and our conclusion in this case follows logically from the previous holdings in Work v. Campbell, supra, 164 Cal. 343, 128 P. 943, and Gist v. French, supra, 136 Cal.App.2d 247, 288 P.2d 1003.
Judgment reversed with directions to overrule the demurrer to the complaint.
KAUFMAN, P. J., and DRAPER, J., concur. --------------- * Opinion vacated 328 P.2d 449.