Kelley v. New York, New Haven, & Hartford Railroad

Allen, J.

In Bigaouette v. Paulet, 134 Mass. 123 , a husband’s action for loss of consortium with his wife was held to be maintainable, although there was no loss of service or payment of expenses in consequence thereof. And in Bennett v. Bennett, 116 N. Y. 584 , it is said that the basis of the husband’s action for loss of consortium is his right "to the conjugal society of his wife, and that it is not necessary that there should be proof of any pecuniary loss or loss of service.

The present case was tried with an action brought by the plaintiff’s wife, and the same jury fixed the damages in both cases. The defendant took exceptions in this case, but none in the action brought by her. The jury were instructed that the division of the rights to recover, which by law are made between the husband and the wife, does not in any sense increase the aggregate right of recovery, and that the damages which are to be divided between the husband and the wife should not in the aggregate exceed the damages which the wife, if unmarried, would be entitled to recover ; -with the qualification, however, that one additional element should be considered, namely, the loss of consortium by the husband. The defendant contends that now an action will not lie for loss of consortium, or at least that it will not in case of an injury to her through negligence, and that the incurring of expenses will not alone give a ground of action.

It might be sufficient to dispose of this case to say that the plaintiff was bound to support his wife, and that the expenses incurred by him appear to have exceeded the amount of the ver *311 diet, and that therefore the defendant’s exceptions should be overruled ; but in view of the ruling -at the trial allowing the jury to take into account the plaintiff’s loss of consortium, and of the defendant’s request that the correctness of this ruling should be determined, we proceed to consider it.

By the common law it is quite clear that a husband might maintain an action in his own name alone for an injury to his wife which resulted in his loss of consortium with her; as, for example, for an injury caused by an assault and battery upon her, by medical or surgical malpractice, or by other negligence. Hyde v. Scyssor, Cro. Jac. 538. Guy v. Lusy, 2 Rol. R. 51. Russell v. Corne, 2 Ld. Raym. 1031. Dix v. Brookes, 1 Stra. 61. Smith v. Hixon, 2 Stra. 977. 2 Rol. Abr. Trespass, (Y) 16, p. 556. Hale’s Anal. of Law, 96. 3 Bl. Com. 140. 1 Chit. Pl. (7th ed.) 83. Yelv. (Met. ed.) 89. Baker v. Bolton, 1 Camp. 493. Carey v. Berkshire Railroad, 1 Cush. 475 , 478. Barnes v. Hurd, 11 Mass. 59 . Laughlin v. Eaton, 54 Maine, 156. Hopkins v. Atlantic & St. Lawrence Railroad, 36 N. H. 9,14. Lewis v. Babcock, 18 Johns. 443 . Matteson v. New York Central Railroad, 35 N. Y. 487 . Jones v. Utica & Black River Railroad, 40 Hun, 349 (a case much like the present). Berger v. Jacobs, 21 Mich. 215 . Hyatt v. Adams, 16 Mich. 180 . Long v. Morrison, 14 Ind. 595 . Nixon v. Ludlam, 50 Ill. App. 273 . Mewhirter v. Hatten, 42 Iowa, 288 . Mowry v. Chaney, 43 Iowa, 609 . Smith v. St. Joseph, 55 Mo. 456 .

The contention of the defendant, therefore, must rest entirely on the ground that the husband has lost this right of consortium by reason of the legislation of this Commonwealth increasing the rights of married women. Harmon v. Old Colony Railroad, 165 Mass. 100 . But there has been no substantial change in the statutes upon this subject since the decision in Bigaouette v. Paulet . Notwithstanding the progress of legislation in giving to married women the control of their time and actions, this right of the husband is not destroyed. The unity and identity of interest which by the common law existed between husband and wife have been impaired. Butler v. Ives, 139 Mass. 202 . They are not, however, entirely done away with. The husband’s right to compel his wife to work for him is abridged, but he still has a right to her society and assistance, which is different in charac *312 ter and degree from that which other people have, or which she is at liberty to give to them. By marriage, both husband and wife take upon themselves certain duties and obligations towards each other, in sickness and health, which it cannot be supposed that the Legislature has intended wholly to uproot. A married woman may now perform any labor or services on her sole and separate account, as her husband may ; nevertheless, each owes certain duties to the other which are not annulled by the statutes. Mewhirter v. Hatten, 42 Iowa, 288 . These duties are included in the word consortium; but the extent of these duties, or of the right of consortium, need not now be determined. The only question presented to us is, whether the presiding justice was right in allowing the jury to consider at all the loss of consortium.

It is argued by the defendant, that, if a husband has a right to recover for the loss of consortium through an injury caused by negligence, a wife also would have the same right, by virtue of the existing statutes, in case of such an injury to her husband ; and that this has never been held or even contended for. She has no such right at common law; but whether she has by statute we do not now consider. The question has been considered elsewhere, but the decisions are not in harmony.

Exceptions overruled.