Millington v. Southeastern Elevator Co.
Decision Date | 02 July 1968 |
Citation | 239 N.E.2d 897,36 A.L.R.3d 891,22 N.Y.2d 498,293 N.Y.S.2d 305 |
Parties | , 239 N.E.2d 897, 36 A.L.R.3d 891 Pauline MILLINGTON, Appellant, v. SOUTHEASTERN ELEVATOR CO., Inc., et al., Respondents. |
Court | New York Court of Appeals Court of Appeals |
Alfred S. Julien, New York City, Nathaniel Greenbaum and Helen B. Stoller, for appellant.
Jack Hart and Martin R. Cramer, New York City, for Elmer E. Smith, respondent.
Morris Zweibel, New York City, for Goodrich Associates, Inc., respondent.
John Nielsen, New York City, for Southeastern Elevator Co., Inc., respondent.
I. Sidney Worthman, for Lindsay Park Housing Corp., respondent.
In 1965, Cyril H. Millington, the husband of the plaintiff, Pauline Millington, was 37 years old. He became completely paralyzed from his waist down as a result of an elevator accident. His wife has brought this action for loss of consortium basing her claim on the fact that her husband will spend the rest of his life as an invalid. She further alleges that this has caused a radical change in their marriage and that this circumstance was due to the defendants' negligence, breach of warranty and statutory violations.
Defendants moved to dismiss the complaint on the ground of legal insufficiency. The motions were granted on the authority of Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898. The Appellate Division unanimously affirmed without opinion. We granted leave to reconsider our position in Kronenbitter.
The passage of statutes which have resulted in the legal emancipation of married women (General Obligations Law, § 3--301, subd. 1; § 3--301, subd. 1; § 3--313; Domestic Relations Law, §§ 50, 61, 231; Real Property Law, §§ 11, 302), as well as those enactments which have imposed equal obligations and responsibilities upon women including the requirement of supporting a husband (Domestic Relations Law, § 32; Social Services Law, § 101) have revolutionized the legal status of married women. Recently, discrimination on the basis of sex was proscribed (U.S.Code, tit. 42, § 2000e et seq.). These legal changes are, of course, a reflection of the movement of society generally toward equality between the sexes, and it continues without surcease.
As long ago as 1889, this court wrote: '(The husband's) right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband' (Bennett v. Bennett, 116 N.Y. 584, 590, 23 N.E 17, 18, 6 L.R.A. 553). Although in Kronenbitter we acknowledged this development in the law, nevertheless we fefused to recognize the wife's right to maintain an action for loss of consortium on two grounds. First, there is an alleged danger of duplication of damage. Second, it is claimed that the cause of action is based on outworn theory. Quoting Professor Jaffe, the opinion described the action as 'a fossil from an earlier era' (Damages for Personal Injury: The Impact of Insurance, 18 Law & Contemp.Prob. 219, 229).
Consortium, it is insisted, includes the loss of support and, since that damage is already recovered by the husband in the form of recovery for lost earnings, there may be a double recovery. Separating the common elements of the two items of damage would thus unduly confuse a jury. Aside from the fact that the jurisdictions which permit recovery by the wife have indicated no difficulty with the double recovery aspect, a proper charge by the trial court would obviate the entire problem since it would not have to mention the element of support. (Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 819, 23 A.L.R.2d 1366, cert. den. 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624).
Only this past year, the Supreme Court of Wisconsin in Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137, quoting the Illinois Supreme Court in Dini v. Naiditch, 20 Ill.2d 406, 427, 170 N.E.2d 881, 86 A.L.R.2d 1184, rejected the double recovery argument (34 Wis.2d 558, 150 N.W.2d 144): "Any conceivable double recovery * * * can be obviated by deducting from the computation of damages in the consortium action any compensation given her husband in his action for the impairment of his ability to support * * * (S) ince the possibility of double recovery can be eliminated by this simple adjustment of damages, it should not constitute a basis for denying (the wife's) action, Which includes many elements which are in no way compensable in the husband's action.' (Emphasis added.)' Even the critics of the extension of the rule have conceded that the problem is minimized by a joint trial of both the husband's and wife's causes of action.
Since in New York, it is rare, if not unknown, to try a husband's consortium action separately from his wife's negligence action, the fear of duplicative damages is wholly unsupportable. Furthermore, if any plaintiff should attempt to exploit the possibility of double recovery by bringing separate actions, motions to consolidate would quickly resolve that difficulty.
Turning then to the contention that the action is a dated one--'an anachronistic remnant of the wife's common law inability to sue and recover damages for her own injuries' (Igneri v. Cie de Transports Oceaniques, 2 Cir., 323 F.2d 257, 264), it has been argued that the way to eliminate the inequality is to remove the husband's cause of action. (Kronenbitter v. Washburn Wire Co., supra, 4 N.Y.2d p. 527, 176 N.Y.S.2d p. 355, 151 N.E.2d p. 899).
The concept of consortium includes not only loss of support or services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more. (Montgomery v. Stephan, 359 Mich. 33, 36, 101 N.W.2d 227; Moran v. Quality Aluminum Casting Co., supra, 34 Wis.2d p. 557, 150 N.W.2d 137.) Consequently the interest sought to be protected is personal to the wife. It is the interest which may have turned a happily married woman into a life-long nurse and deprived her of the opportunity of rearing children. Disparagingly described as 'sentimental' or 'parasitic' damages, the mental and emotional anguish caused by seeing a healthy, loving companionable mate turned into a shell of a person is real enough. To describe the loss as 'indirect' is only to evade the issue. The loss of companionship, emotional support, love, felicity and sexual relations are real injuries. The trauma of having to care for a permanent invalid is known to have caused mental illness. There may not be a deterioration in the marital relationship, but it will certainly alter it in a tragic way. Even in the case of a husband the 'sentimental' damages may predominate over the loss of support or material element. Thus to describe these damages as merely parasitic is inaccurate and cruel. The Supreme Court of Michigan effectively answered the 'fossil' argument when it wrote in Montgomery v. Stephan, 359 Mich. 33, 46, 48--49, 101 N.W.2d 227, 233, 234, supra:
'We come, then, as we must ultimately in every case, unless we are to continue to utilize fictions, or unless we are to dispose of the case on a narrow point of procedure or pleading, to a balancing of interests. On the one hand we have a wife deprived of the affection of her husband, his companionship, his society, possibly deprived even of her opportunity to bear sons and daughters. On the other, we have a defendant, whose liability because of his act must involve the violation of a duty of care with respect to it, and, furthermore, whose liabilities as a result of his negligent act must have some reasonable limitation. So analyzed, we see the problem not as a unique and peculiar historical anomaly but as a part of a much larger pattern, as a part of a clearly discernible movement in the law. * * *
In Deems v. Western Md. Ry. Co., the Maryland Court of Appeals stated (247 Md. 95, 108--109, 231 A.2d 514, 521--522):
'(T)here is, in a continuing marital relationship, an inseparable mutuality of ties and obligations, of pleasures, affection and companionship, which makes that relationship a factual entity. * * * We...
To continue reading
Request your trial-
Borer v. American Airlines, Inc.
...of 115 Cal.Rptr., at p. 682 of 525 P.2d) from Millington v. Southeastern Elevator Co. (1968), 22 N.Y.2d [19 Cal.3d 455] 498, 293 N.Y.S.2d 305, 312, 239 N.E.2d 897, we denied that loss of consortium is "too personal, intangible, and conjectural to be measured in pecuniary terms by a jury. Th......
-
Slicer v. Quigley
...medium of development. Diaz v. Eli Lilly & Co., 364 Mass. 153, 158, 302 N.E.2d 555 (1973); Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 508, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968). It is no impermissible slight to the rule of precedent to remember that, as with decisional law ge......
-
Diaz v. Eli Lilly & Co.
...are among the many jurisdictions that have now allowed the consortium action by either spouse. Millington v. Southeastern Elev. Co. Inc., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968). Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965). Montgomery v. Stepha......
-
Lombardo v. D. F. Frangioso & Co.
...231 A.2d 514 (1966). Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137 (1967). Millington v. Southeastern Elev. Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968). Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865 (1969). Troue v. Marker, Ind., 252 N.E.......
-
Daniel Hernandez and Nevin Cohen, Lauren Abrams and Donna Freemantweed, Michael Elsasser and Douglas Robinson, Mary Jo Kennedy and Jo-Ann Shain, and Daniel Reyes and Curtis Woolbright, plaintiffs-respondents--against--Victor L. Robles, in his official capacity as city clerk of the City of New York, defendant-appellant.
...privilege). (45) Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 527 (1958). (46) Oppenheim v. Kridel, 236 N.Y. 156, 168 (1923). (47) 22 N.Y.2d 498 (48) Id. at 504. (49) Id. at 503, 508 (citation omitted); see also id. at 508-09 (stating that the old rule "'no longer expresses a standard o......