Blair v. Seitner Dry Goods Co.

OSTEANDEE, J.

(after stating the facts). In the brief for appellant argument is addressed to the alleged positive character of the evidence establishing the negligence of plaintiff’s wife, the uncertainty of the evidence to establish the injuries claimed to have been received by her, the rulings of the court and the charge upon the subject of plaintiff’s loss of consortium, the alleged excessive recovery, and the verdict of the jury which is, it is claimed, opposed to the weight of evidence. These are the subjects of principal discussion and will be considered.

1. It is not clear whether plaintiff’s wife did or did not exercise a proper degree of care in entering the elevator under the circumstances she says existed there. The question was for the jury.

2. The nature and extent of the injuries sustained *311 by plaintiff’s wife are uncertain. The opinions of the medical men go no further than' this: that her condition at the time of the operation and before and after it is not in doubt and, with certain exceptions, might have been the result of the injury. These witnesses relate also other causes for such a condition as existed, and it is plaintiff’s claim that by his testimony he has eliminated these other possible causes from consideration, for which reason the proximate cause of her condition is not conjectural. On the other hand, it is the contention of defendant that the testimony is equally convincing that her troubles, relieved by the surgeons, were of long standing. It is very doubtful whether, exercising themselves wholly outside the domain of conjecture and wholly within that of proper and reasonable deduction from such testimony as they believed, the jury could have reached either material conclusion. As was true in Farrell v. Haze, 157 Mich. 374, 391, 392 ( 122 N. W. 197 ), a final condition of the patient was made certain by expert testimony. In the Farrell Case it was admitted that the cause of the condition was matter for expert determination. In the case at bar the accident (in the Farrell Case the treatment) might have produced the Known condition. But in this, as in that case, the testimony seems to fall short of showing that it is more probable the conditions, relieved by the surgical operation, were caused by the accident. So much plaintiff was bound to prove. Otherwise recovery depends upon attributing to a particular cause an injury which may as well be attributed to another cause.

3. Consortium has been defined as the person’s affection, society, or aid; the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation. 8 Cyc. p. 614. See Jacobsen v. Siddal, 12 Ore. 284 ( 7 Pac. 108 , 53 *312 Am. Rep. 360 ) ; 21 Cyc. p. 1525; Bouvier’s Law Diet, p. 402.

“The right of consortium is a right growing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together.” Feneff v. Railroad, 203 Mass. 278 ( 89 N. E. 436 ).

“Per quod consortium, amisit” (by which he has lost the companionship) was the phrase used when at the common law plaintiff declared for any bodily injury done to his wife by a third person. 3 Blackstone Commentaries, p. 140. Appellant says:

“We insist that for loss or diminution of his wife’s ‘marriage fellowship,’ of her ‘company and co-operation,’ that even if her society and companionship is less satisfactory than formerly, that in his association and intercourse with her he finds less comfort, pleasure, or happiness, all of which are matters of sentiment affecting the mind and heart and not the pocket, he cannot recover damages therefor. In this case no evil motive or wilful misconduct on the part of the defendant is claimed. * * * This is unlike an action on the case for seduction, or alienation of the wife’s affections, which stand upon peculiar reasons.”

At common law when a married woman was injured in her person she was joined with her husband in an action for the injury, and in such action nothing could be recovered for loss of her services or for the expenses to which the husband had been put in taking care of and curing her. There was no allowance for her loss of ability to earn wages, render services and be helpful to others, because these elements of damage, so far as recoverable at all, belonged to the husband. For such loss of services and such expenses the husband alone could sue. ' 1 Chitty, PL p. 84. The common law gave the husband the right to the labor, services, and earnings of his wife.

*313 It is not now an answer to the wife’s suit to recover damages for injuries to her person that her husband is not joined as plaintiff. The legislature has relieved her of certain disabilities so called and has denied to her husband the right to her earnings and the profits of any business she may carry on. It has not, however, put her domestic duties and labor, performed in and about her home for her family, upon a pecuniary basis, nor meant to classify such duties as services, nor to permit her to recover damages for loss of ability to perform them. Gregory v. Motor Car Co., 181 Mich. 101 ( 147 N. W. 614 ). Where there is no intentional wrong, the ordinary rule of damages in every case goes no further than to allow pecuniary compensation for the impairment or injury directly done. If a husband is injured and recovers his damages, his wife cannot usually recover damages. The husband has usually, as a result of his action, been compensated for his pain and suffering, past and future, for loss of time, for diminution of capacity to earn money. The minor children of an injured father and those of an injured mother may suffer on account of the injury, but it has never been considered that they had an action therefor. The negligent defendant is supposed to have made full pecuniary compensation to the injured parent. Their loss is regarded not as direct, but consequential and remote.

If a husband may recover for loss of consortium resulting from physical injury to the wife occasioned by negligent conduct of the defendant, the wife may recover for loss of consortium of the husband under similar conditions. The right affected, if it may be properly called a right, is mutual. No reasoning will now support a recovery by one which will deny it to the other spouse.

“No case has been brought to our attention, and after an extended examination we have found none, *314 in which an action for a loss of consortium alone has been maintained merely because of an injury to the person of the other spouse, for which the other has recovered, or is entitled to .recover, full compensation in his own name, when the only effect upon the plaintiff’s right of consortium is that, through the physical or mental disability of the other, the companionship is less satisfactory and valuable than before the injury.” Feneff v. Railroad, 203 Mass. 278, 280 ( 89 N. E. 436, 437 , 24 L. R. A. [N. S.] 1024, 133 Am. St. Rep. 291 ).

If plaintiff has in fact, on account of his wife’s injury, lost a service • which she habitually rendered, then, as service, and according to the pecuniary value of it, he ought to be permitted to recover. Recovery should be according to the fact. For loss of consortium, of the undefined and indefinable influence of either spouse in the family relation, and the pleasure of the relationship, neither may recover. The Massachusetts decision in Kelley v. Railroad Co., 168 Mass. 308 ( 46 N. E. 1063 , 38 L. R. A. 631, 60 Am. St. Rep. 397 ), relied upon in Gregory v. Motor Car Co., supra, and often cited in text-books and opinions of judges has been distinctly overruled as to the point now being considered. Feneff v. Railroad, supra; Bolger v. Railway Co., 205 Mass. 420 ( 91 N. E. 389 ). While our own former decisions do not distinctly rule the point, still Bowdle v. Railway Co., 103 Mich. 272 ( 61 N. W. 529 , 50 Am. St. Rep. 366 ), is plainly not opposed to it. Nor do I think Gregory v. Motor Car Co. wrongly decided; no specific claim having been made that the damages were excessive, and the objection being that the husband could not recover at all for loss of services of his wife. As to the elements which may be considered by a jury in fixing the pecuniary loss of the husband, the charge delivered in that case was in some respects opposed to the conclusion I have reached (although to that portion of the charge no objection appears to have been made), and some of *315 the decisions of other courts quoted with approval permit a jury to consider what I now think they should not be permitted to consider in estimating the value of the wife’s services.

The testimony referred to should not have been received, the court erred in his instructions upon the subject of loss of consortium, and, more doubtful, but nevertheless tangible, plaintiff did not fairly sustain the burden of proving that the probable cause of the wife’s injuries, relieved by a surgical operation at the cost of the husband, was the injury for which defendant was held responsible.

The judgment is reversed and a new trial granted.

Brooke, C. J., and McAlvay, Kuhn, Stone, Moore, and Steere, JJ„, concurred. Bird, J., did not sit.