Boden v. Del-Mar Garage, Inc.

• Decision Date: 19 May 1933
• Docket Number: No. 26063.,26063.
• Citation: 185 N.E. 860,205 Ind. 59
• Parties: BODEN v. DEL-MAR GARAGE, Inc.
• Court: Indiana Supreme Court

205 Ind. 59

185 N.E. 860

BODEN

v.DEL-MAR GARAGE, Inc.

No. 26063.

Supreme Court of Indiana.

May 19, 1933.

Appeal from Superior Court, Marion County; Russell J. Ryan, Judge.

Action by Bessie M. Boden against the Del-Mar Garage, Inc. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Alvah J. Rucker, Oren S. Hack, Howard Caughran, and James A. Collins, all of Indianapolis, for appellant.

Henderson & Henderson, of Indianapolis, for appellee.

HUGHES, Judge.

This is an action for damages by the appellant against the appellee predicated upon the fact that the servant of appellee, while acting within the scope of his authority for and on behalf of the appellee, did “wilfully, maliciously, purposely, and intentionally inflict injuries” upon Lincoln G. Boden, husband of appellant, and upon appellant. It appears from the allegation of the complaint that on or about January 25, 1929, the appellee ran and operated a garage at the corner of East Market and North Delaware streets in the city of Indianapolis for hire, and did then and there store the automobiles of the owners and users thereof, and for such purposes invited the public in its building for such purpose; that on said day Lincoln G. Boden, husband of appellant, stored his automobile in said garage; that on the same day the said Lincoln G. Boden and the appellant returned to the garage after his automobile; that while in said garage a servant of the appellee ran an automobile against the said Lincoln G. Boden, thereby striking and knocking him down on the floor of said garage and seriously injuring him; that by reason of said injuries the said Lincoln G. Boden suffered great and permanent pain, permanent headaches, permanent nervous shock, and loss of memory; that he has lost his earning capacity, the use of his body, and his mental and physical energy and health; that, by reason of said injuries, the said Lincoln G. Boden has been, and is, and will permanently continue to be absent-minded and delinquent in his conjugal duties toward the plaintiff, and that she (the appellant) has lost the consort, companionship, society, affection, and support of her husband. The appellant further alleges in her complaint that she was personally present in the garage at the time her husband was injured and saw her husband on the floor where he had been knocked down and saw him bleeding and heard the screams of many people; that the appellant was terror-stricken and frightened, and thereby received great and permanent mental suffering and nervous shock to herself; that by reason of the foregoing statements the appellant has lost the consort, society, companionship, and support of her husband, and her own nervous system has been greatly injured, and she asks for exemplary and punitive damages against the defendant in the sum of $10,000.

The appellee filed a demurrer to the complaint, which was sustained, and judgment rendered for appellee for failure of appellant to plead further.

The assignment of error is: “The Court erred in sustaining the demurrer to the complaint.”

It is the theory of the complaint that the plaintiff under the facts averred in her complaint that she is entitled to recover damages from the appellant on the ground that, by the willful and malicious tort of the appellee, as alleged, in injuring her husband, for the reason that she has thereby lost the consort, society, affection, and support of her husband, and that she was personally injured by nervous shock received by her as an eye witness to the injury of her husband.

“In its original application the term consort, or consortium was used to designate a right which the law recognized in a husband, growing out of the marital union, to have performanceby the wife of all duties and obligations in respect to him which she took on herself when she entered into it, and as thus employed it includes the right of society, companionship, conjugal affection, and services. The right of consortium was not limited to the right of society, companionship and conjugal affection. The right of service was always the predominant factor and the language of the early cases show that the loss of service as well as society and affections were included in the legal meaning of the loss of consortium.” Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582, 33 L. R. A. (N. S.) 1042, Ann. Cas. 1912B, 1120.

May a wife in this state recover damages upon a statement of facts as alleged in the complaint before us? Counsel for appellant assert with confidence, in a very able and exhaustive brief, that this can be done, and cite many cases to uphold their contention. Upon a careful examination of these cases we feel that they are mistaken.

In our own state the cases of Postlewaite v. Postlewaite, 1 Ind. App. 473, 28 N. E. 99, 100;Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep. 213;Holmes v. Holmes, 133 Ind. 386, 32 N. E. 932; and Brown v. Kistleman, 177 Ind. 692, 98 N. E. 631, 40 L. R. A. (N. S.) 236, are cited.

The case of Postlewaite v. Postlewaite, supra, was an action for alienation of affections of appellant's husband, and the court held that such an action could be maintained, and it is now the general rule that such actions can be maintained. This is so because of the statute in our state, and for the same reason in other states, which gives the wife the right to maintain an action in her name. The married woman had the right of action at common law, but without the power of asserting such right. Lynch v. Knight, 9 H. L. 577.

The court in the case of Postlewaite v. Postlewaite, supra, said: “The reasoning of the modern cases is that the husband always had the right to sue for the loss of his wife's consortium, and that no good reason can be shown why the same right did not inhere in the wife for the loss of the consortium of the husband; that in principle there is no distinction between the two cases; that the only obstacle in the way of her enforcement of this right was (as we have seen) the legal unity of herself and husband, and the absence of enabling statutes; for, if she had been permitted to maintain any sort of an action at law, it would have amounted to a recognition of her separate legal existence.” We agree with this statement of the law, but we must bear in mind the nature of the action which was one for the alienation of affections. This right of action is now generally recognized, and all the cases cited in this case were cases of this character.

The case of Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389, 390, 14 L. R. A. 787, 28 Am. St. Rep. 213, is also one for the alienation of affections, and the court followed the law as laid down in the case of Postlewaite v. Postlewaite, supra. The court said in the Haynes v. Nowlin Case that: “It was never asserted by the better-considered cases nor by the abler text-writers that she did not herself possess the substantive right upon which the cause of action was founded. The reason that she could not maintain such an action was not that she was not the source of the substantive right, but that there was no remedy available to her for the vindication of the right. When the statute supplied the remedy by breaking down the barrier which stood between her and a recovery, it clothed her with full right to enforce her just and meritorious cause of action.” The case of Holmes v. Holmes, 133 Ind. 386, 32 N. E. 932, is also a case for alienation of affections and the sole question considered was, “Can a married woman maintain an action in her own name for alienating the affections of her husband?” It was properly held that she could.

The other Indiana case cited by the appellant is that of Brown v. Kistleman et al., 177 Ind. 692, 98 N. E. 631, 632, 40 L. R. A. (N. S.) 236. This was an action by the appellant against the appellee for damages growing out of personal injuries to her husband, Albert Brown. In the third paragraph of her complaint she alleged that her husband was in the employ of appellees, and, while so engaged, sustained an injury to his eye, and that by reason thereof his earning capacity has been destroyed, and appellant, as a consequence, has been deprived of support and maintenance. The fourth paragraph alleged that, by reason of the injury to her husband, she has been deprived of the companionship, comfort, and society of her husband. The fifth paragraph bases the right to recovery solely on appellant's loss of the companionship, comfort, society, and protection of her husband. The court said in this case: “A wife has no cause of action against a third person for damages for negligent injuries to her husband, resulting in the diminutions of his earning capacity and his consequent ability to comfortably support and maintain her, because the husband is entitled, in a proper action, to full compensation for such loss. *** Since the removal of most of the common-law disabilities of the wife, it has been held in Indiana, and in most other jurisdictions, that a wife may recover damages for the alienation of her husband's affections. *** In such cases, no question of negligence is involved. The recovery is for an injury intentionally inflicted, and is not limited to compensation, but may be for punitive damages as well.” The instant case is practically the same as the foregoing case, except in the present case the appellant alleges and asks for damages to herself by reason of nervous shock, and also alleges that the negligence of appellee was willful and malicious.

In Brown v. Kistleman et al., supra, the lower court sustained a demurrer to the complaint, and the case was affirmed by the Supreme Court. In reaching a conclusion in the case the court cited and quoted from Goldman v. Cohen, 30 Misc. 336, 63 N. Y. S. 459, and also from Feneff v. New York R. Co., 203 Mass. 278, 89 N. E. 436, 24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291, and Nolin v. Pearson, 191 Mass. 283, 77 N. E. 890, 4 L. R. A. ...