Acuff v. Schmit, 48939

CourtUnited States State Supreme Court of Iowa
Citation248 Iowa 272,78 N.W.2d 480
Docket NumberNo. 48939,48939
PartiesMaude Lois ACUFF, Plaintiff-Appellant, v. Raymond SCHMIT, Defendant-Appellee.
Decision Date18 September 1956

Frederick G. White, Wendell A. Holmes, Waterloo, for appellant.

Glenn B. Beers and R. Bruce Hughes of Reid, Beers, Beers & Hughes, Waterloo, for appellee.

HAYS, Justice.

This is an appeal from a judgment of the trial court sustaining defendant's motion to dismiss on the ground that the petition failed to state a cause of action.

The petition alleges that due to defendant's negligent operation of an automobile, her husband was permanently disabled and rendered incapable to carry on marital relations. It states that plaintiff 'has been permanently deprived of the aid, services, support, affection, society, companionship, and consortium, including sexual relations of her said husband' and asks damages on account thereof.

While not appearing in the record, it appears from Appellee's argument that the husband's cause of action against the defendant has been settled and dismissed with prejudice. Assuming such to be the case we deem it to be immaterial to this appeal and the issue here presented.

The sole question for determination is: May a wife maintain an action for damages for loss of consortium against one who, by his negligence, has permanently incapacitated her husband?

'Consortium' at common law included not only conjugal fellowship of husband and wife but also service as a prominent, if not the dominant, factor; not so much the service resulting in the performance of labor or the earning of wages, as the service which contributed and assisted in all the relations of domestic life. Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889. This concept of the term became known as the 'material' or 'practical' version. As the attitude of the courts toward the status of husband and wife, one to the other, changed, a more modern and limited version thereof was adopted by various jurisdictions. Under it the term 'consortium' was limited to 'the right which husband and wife have to each other's society, comfort, and affection'. 41 C.J.S., Husband and Wife, § 11; Black's Law Dictionary, and has become known as the 'sentimental version'. This Court has defined it as 'conjugal fellowship of husband and wife; and the right of each to the company, co-operation, affection and aid of the other in every conjugal relation'. Price v. Price, 91 Iowa 693, 60 N.W. 202, 29 L.R.A. 150; McGlothlen v. Mills, 221 Iowa 204, 265 N.W. 117. Thus it appears that the 'sentimental' version has been accepted in Iowa and it is on this theory that the parties have submitted this case.

While this exact question has been before this Court on at least one other occasion it does not appear to have been determined and is therefore one of first impression. In the early case of Lewis v. Maddy, 187 Iowa 603, 174 N.W. 346, it appears that plaintiff's husband was injured by defendant's negligence which resulted in his death one hour later. A demurrer to the petition was sustained. This Court said in 187 Iowa at page 605, 174 N.W. at page 346, 'Without passing upon the legal question thus presented, it is enough to say that the damages for such a brief space of time would be necessarily nominal. * * * We could not, therefore, reverse for the purpose of allowing nominal damages, even though the legal contention of plaintiff were sustained. We shall not, therefore, undertake to pass upon it.'

At common law the right of a husband to maintain an action for damages for loss of consortium was recognized, usually under the 'material' version which included services. 41 C.J.S., Husband and Wife, § 401(3). It is said in 1 Cooley, Torts, 3rd Ed., 469, that since Blackstone's day there has been an extension of the common law right of a husband to recover for loss of consortium to cases in which the personal injury sustained by the wife was the result of negligence; so that it is generally held that it makes no difference whether the injury is intentionally or negligently inflicted. Feneff v. New York Central & Hudson River R. Co., 203 Mass. 278, 89 N.E. 436, 24 L.R.A.,N.S., 1024; Annotation, 23 A.L.R.2d 1378.

While Appellee asserts, perhaps correctly, this Court has never passed upon the right of the husband to maintain such an action based upon negligence, we find many expressions of the Court bearing, at least indirectly, upon the question.

In McKinney v. Western Stage Co., 4 Iowa 420, a husband sought to recover damages due to his wife's injury caused by defendant's negligence. At page 423, we said 'We suppose that at common law, the rule is well settled that for an injury to the person of the wife during coverture, by battery, or to her character by slander, or for any such injury, the wife must join with her husband in the suit. When, however, the injury is such that the husband receives a separate loss or damage, as if in consequence of the battery, he has been deprived of her society, or has been put to expense, he may bring a separate action in his own name * * *. It therefore follow, that in the case before us, the husband might maintain his separate action for loss sustained by him in consequence of being deprived of the society of his wife or being put to expense on account of the injury'.

In McDonald v. Chicago & N. W. R. R. Co., 26 Iowa 124, 140, we said 'At common law where the action was for a tortious injury to a married woman, the husband suing alone might recover for the expenses of a cure, for the loss of service, and of the society of his wife. But in a suit in the name of the husband and the wife, the cause of action was the injury to the wife and the recovery was limited to damages for that injury * * * and did not embrace the injury to the husband, who alone was liable to pay the medical attendant, and who alone was considered damnified by the loss of the services and society of his wife * * *. But our statute has changed the common law rule as to the parties in such cases. Rev. 2775. This provides that in an action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to join thereto claims in his own right.' See also, Musselman v. Galligher, 32 Iowa 383.

Lane v. Steiniger, 174 Iowa 317, 156 N.W. 375, was an action by a husband to recover damages on account of his wife's injury and death due to being struck by a truck. It is said in 174 Iowa at pages 318-319, 156 N.W. at page 376, 'Had death been instantaneous, no right of action would have accrued to the husband. Major v. [Burlington C. & N.] R. Co., 115 Iowa 309, 88 N.W. 815. But she survived several hours after the collision, and because of this the husband might have maintained an action for * * * loss of services, but for the enactment of section 3477a, Code Supp. [1913], * * *. All left to the husband, then, was the inconsiderable claim for loss of consortium during a few hours'. This case is cited in Lewis v. Maddy, supra. See also, Mowry v. Chaney, 43 Iowa 609; Jacobson v. Fullerton, 181 Iowa 1195, 165 N.W. 358; Bohanan v. Maxwell, 190 Iowa 1308, 181 N.W. 683, 14 A.L.R. 1004. Such a right clearly existed at common law so far as the husband was concerned, and we find no statute which deprives him of the same.

There is another type of action, recognized at common law and in this state, where the right of consortium is deemed to be a property right entitled to protection in the courts. For the alienation of the affections of a spouse an action could, at common law and in this state, be maintained by either the husband or the wife in her own name, depending upon which is the injured party. The gravamen of this action is the loss of consortium. 41 C.J.S., Husband and Wife, § 11 and 42 C.J.S., Husband and Wife, § 665; Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L.R.A.,N.S., 643; Feneff v. New York Cent. & Hudson R. Co., 203 Mass. 278, 89 N.E. 436, 24 L.R.A.,N.S., 1024; Foot v. Card, 58 Conn. 1, 18 A. 1027, 6 L.R.A. 829; Price v. Price, 91 Iowa 693, 60 N.W. 202, 29 L.R.A. 150; McGlothlen v. Mills, 221 Iowa 204, 265 N.W. 117; Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72.

At early common law such an action was not permitted by a wife. This was on the theory that the wife had no right of consortium, only the husband could be damnified by a loss thereof; or that, assuming the existence of a right, the restrictions of coverture required that the husband be joined as a party plaintiff. When this was done it created the anomalous situation of one joint tort-feasor suing another. Nolin v. Pearson, supra; Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522, 8 L.R.A. 420. Under the recognized rule that where there is a wrong there must be a remedy, necessity required that the coverture restriction be modified to allow the wife to bring suit in her own name. Wolf v. Frank, 92 Md. 138, 48 A. 132, 52 L.R.A. 102.

Today, except where such an action is prohibited by statute, the general rule is to allow the wife to maintain such an action. However in so doing, the courts, including Iowa, say that before liability can attach to a defendant it must appear that the acts done which effectuated the alienation must have been done with intent to produce such results. That it must appear to be a wrong directed at the wife, an intent to deprive her of her spouse's affections. In Rank v. Kuhn, supra, it is said that plaintiff in order to recover must show three things: (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) causal connection between the conduct and the loss. See also Maahs v. Schultz, 207 Wis. 624, 242 N.W. 195. To the writer, whether this requirement has any greater meaning or significance than the recognized rule that one to recover in an action based upon negligence must establish (1) defendant's negligence, (2) injury or damage, and (3) proximate cause between...

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