Diaz v. Eli Lilly & Co.

• Citation: 364 Mass. 153,302 N.E.2d 555
• Parties: Milagros DIAZ v. ELI LILLY AND COMPANY.
• Decision Date: 10 October 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 555

302 N.E.2d 555

364 Mass. 153

Milagros DIAZ v. ELI LILLY AND COMPANY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 5, 1973.

Decided Oct. 10, 1973.

Paul R. Sugarman, James S. Robbins, Boston, with him, for plaintiff.

Joseph L. Cotter, Dennis O'Dea, Boston, with him, for defendant.

Before TAURO, C.J., and REARDON, QUIRICO, BROUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

A spouse suffers bodily injuries through the negligence of a third party. Does the other spouse have a claim against the tortfeasor for a loss of consortium that results from the injuries? The present appeal provides us with an opportunity to reconsider this question ¹ upon which the common law has spoken in recent years with exceptional vigor.

The case arises on the pleadings. Milagros Diaz alleges in her declaration in one count ² that she is the wife of Jose Santos Diaz; that the defendant Eli Lilly and Company is the manufacturer and merchant of a fungicide called 'Parnon'; that Jose made use of 'Parnon' in the course of his work on various dates from August, 1968, to September, 1970; that as a result of his exposure to 'Parnon,' Jose sustained severe bodily injuries; that in consequence of these injuries to Jose, the plaintiff Milagros has suffered a loss of the consortium of Jose, including his 'services, society, affection, companionship, (and) relations,' all to her damage; that the defendant is responsible therefor because it manufactured the product negligently in that it failed to give adequate warning of the dangers involved to the user. To this declaration the defendant demurred on the ground that it stated no cause of action. A judge of the Superior Court sustained the demurrer, refusing leave to amend. From this ruling the plaintiff takes her appeal. It appeared at the argument that the husband Jose has pending in the Superior Court an action against the defendant for his injuries, instituted before the wife's action. ³

Some perspective is needed. ⁴ In olden days, when married women were under legal disabilities corresponding to their inferior social status, any action for personal or other injuries to the wife was brought in the names of the husband and wife, and the husband was ordinarily entitled to the avails of the action as of his own property. The husband had, in addition, his own recourse by action without even nominal joinder of the wife against those who invaded the conjugal relationship, for example, by criminal conversation with or abduction of his wife. At one time the gravamen of the latter claims for loss of consortium was the deprivation of the wife's services conceived to be owing by the wife to the husband; ⁵ the action was similar to that of a master for enticement of his servant. Later the grounds of the consortium action included loss of the society of the wife and impairment of relations with her as a sexual partner, and emphasis shifted away from loss of her services or earning capacity. ⁶ The defendant, moreover, need not have infringed upon the marital relation by an act of adultery or the like, for he could inflict similar injuries upon the husband in the way of loss of consortium by an assault upon the wife or even a negligent injury. ⁷ Meanwhile, what of the wife's rights? She had none analogous to the husband's. The husband was of course perfectly competent to sue without joinder of the wife for injuries to himself, and there was no thought that the wife had any legal claim to the husband's services or his sexual or other companionship--any claim, at any rate, in the form of a cause of action for third-party damage to the relationship.

With the coming in of the married women's acts in the mid-nineteenth century, ⁸ the wife became competent to sue in her own name for injuries to herself and could retain the proceeds of those actions. Her injuries for which she could recover judgment included loss of her capacity to render services in the home as well as to earn money on the outside; the husband, in Massachusetts at least, no longer had a claim even for household help required because of his wife's disablement. ⁹ The question naturally arose whether after the married women's acts the husband's actions above described for loss of consortium should be ruled obsolete or whether, on the contrary, they should be held to survive in substantial dimension and be complemented by analogous remedies extended to the wife. To be sure, loss of the wife's services or earnings could no longer figure in a right of consortium on the part of the husband, but the other components of the right--the wife's society or companionship or assistance and her sexual availability--could remain. It was held very widely that husbands still retained their consortium rights, the element of loss of wives' services and earnings, however, being excluded from the husbands' recoveries as belonging to the wives themselves. ¹⁰ And it was generally held that the new status of married women implied at least some rights of consortium on their part. If adultery with or alienation of the affections of a wife was a wrong to the husband, similar traffic of another woman with the husband should be actionable by the wife. Wives were readily accorded these rights of action. ¹¹

However, there was difficulty about wives' recovery for acts of third parties not so plainly attacking the marriage relation, say acts of negligence toward the husband injuring him in such a way as to deprive the wife of his society and sexual comfort. The difficulty was perhaps traceable in the end to the reluctance of judges to accept the women's emancipation acts as introducing a broad general premise for fresh decision. This court had peculiar trouble with the problem and was finally led to deny the cause of action to the wife--and then to go on to reverse previous decisions and withdraw the parallel cause of action from the husband.

We note briefly the vagaries in this case development. ¹² Kelley v. New York, N.H. & H.R.R. 168 Mass. 308, 46 N.E. 1063 (1897), had stated, perhaps as dictum, that after the married women's acts the husband still retained the action for loss of consortium by reason of negligence of a defendant causing the wife bodily injuries (excluding recovery for loss of services). In the particular case, the husband's action had in fact been tried together with the wife's for her own injuries. Adverted to, but left open, was the question whether a wife had a corresponding action for loss of consortium of her husband due to third party negligence. In Duffee v. Boston Elev. Ry., 191 Mass. 563, 77 N.E. 1036 (1906), decided nine years later, the same consortium right for negligent injury of the wife was emphatically upheld--to which was subjoined the husband's right of reimbursement of his expenditures for medical care and cure of the wife made in fulfillment of his duty of support. ¹³ Chief Justice Knowlton wrote that the husband's consortium action indeed stood apart from his wife's claim for her personal injuries thus the fact that she had been previously defeated in her negligence action against the same defendant was irrelevant to the husband's action and could not be used therein to support a plea of res judicata. ¹⁴ See also Hey v. Prime, 197 Mass. 474, 84 N.E. 141 (1908).

There was more than an intimation in Nolin v. Pearson, 191 Mass. 283, 286, 77 N.E. 890 (1906) (allowing a wife's action for adultery with her husband), decided within two months of the Duffee case, that the new legal equality of married women would entail giving the wife full rights of consortium, so that the Kelley case, fortified by the Duffee case, might be expected to have its counterpart in the wife's action for negligent injury of her husband. However, Feneff v. New York Cent. & Hudson River R.R., 203 Mass. 278, 89 N.E. 436 (1909), changed the direction of the law. That was an action by the wife for loss of consortium of her husband who had been injured by negligence of the defendant railroad. The husband had sued the railroad previously and had had judgment (see Feneff v. Boston & Maine R.R., 196 Mass. 575, 82 N.E. 705 (1907)). The court now held that the wife could not maintain her action, and the reasons assigned were such as to call logically for abrogation of the husband's right as well--the one affirmed in the Kelley and Duffee cases--saving only the husband's right to reimbursement for expenditures for care and cure. Chief Justice Knowlton in fact indicated expressly that the Kelley case was shaken (strangely, he did not mention his opinion in the Duffee case). But as the Feneff decision appeared to rest in considerable part on a fear of double recovery if the wife were allowed her action after the husband had actually secured a judgment for the same accident in his own action, there remained a possibility that the law of Massachusetts would allow a recovery for loss of consortium due to negligence if any chance of double recovery were rigorously prevented--say by trying both actions together, with careful and discriminating instructions to the jury. Those procedural expedients were not explored by the court in later cases. ¹⁵ In LOMBARDO V. D. F. FRANGIOSO & CO. INC., MASS., 269 N.E.2D 641,^A the majority of the court considered it to be the law of the Commonwealth that a spouse had no enforceable right for loss of consortium resulting from personal injury negligently inflicted on the other spouse. The majority declined to reconsider the question in any detail, believing that a change must come about by legislative action if at all; the minority would have reconsidered the question and upheld the right equally for husband and wife.

To revert to the lines of reasoning used or intimated in the Feneff opinion. The opinion conceded that for 'intentional' (203 Mass. at 280, 89 N.E. 436) invasions of the wife's right of consortium[364 Mass. 159] --as by adultery with or alienation of affections of the husband--the...