Brown v. Kistleman

• Decision Date: 28 May 1912
• Docket Number: 21,981
• Parties: Brown v. Kistleman et al
• Court: Indiana Supreme Court

98 N.E. 631

177 Ind. 692

Brown v. Kistleman et al

No. 21,981

Supreme Court of Indiana

May 28, 1912

From Randolph Circuit Court; John W. Macy, Judge.

Action by Ella Brown against Alva M. Kistleman and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed.

J. W Brissey, for appellant.

E. E Stevenson, for appellee.

OPINION

Morris, J.

Appellant filed her complaint against appellees, for damages growing out of personal injuries to her husband, Albert Brown. The lower court sustained a several demurrer, for want of facts, to each paragraph of complaint, and appellant declined to plead further, whereupon judgment was rendered for appellees.

The errors relied on here are predicated on the action of the circuit court in sustaining the several demurrer to each of the third, fourth and fifth paragraphs of complaint.

The third paragraph alleges that appellant's husband was in the employ of appellees, and, while so engaged, sustained an injury which resulted in the entire loss of his eyesight, and by reason thereof his earning capacity has been destroyed, and appellant, as a consequence, has been deprived of support and maintenance, to her damage in the sum of $ 10,000. It is alleged that the husband's injury was proximately caused by the negligence of appellees, the particulars of which are set out in detail.

The fourth paragraph is similar to the third, with the addition that appellant therein alleges that by reason of the negligent injury to her husband she has been deprived of the companionship, comfort and society of her husband, for which she demands damages.

The fifth paragraph is similar to the third in regard to the allegations of her husband's injury, and bases the right to recover solely on appellant's loss of the companionship, comfort, society and protection of her husband.

A wife has no cause of action against a third person for damages for negligent injuries to her husband, resulting in the diminution of his earning capacity and his consequent ability comfortably to support and maintain her, because the husband is entitled, in a proper action, to full compensation for such loss. 21 Cyc. 1530.

May the wife recover from a third party for the loss of the society, companionship and affection--consortium--of her husband, caused by the negligence of such party?

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. Haynes v. Nowlin (1891), 129 Ind. 581, 584, 29 N.E. 389, 14 L. R. A. 787, 28 Am. St. 213; Wolf v. Wolf (1892), 130 Ind. 599, 30 N.E. 308; Holmes v. Holmes (1893), 133 Ind. 386, 32 N.E. 932; Postlewaite v. Postlewaite (1891), 1 Ind.App. 473, 28 N.E. 99; Nolin v. Pearson (1906), 191 Mass. 283, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. 605, 6 Ann. Cas. 658 and note on page 664.

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 question here involved rarely has been presented to courts of appeal, and, so far as we are able to discover, when presented, a recovery has been denied.

In Goldman v. Cohen (1900), 63 N.Y.S. 459, 30 Misc. 336, it was said: "The defendant demurs to the complaint, which seeks recovery by a wife for the loss she sustained as a wife by the injury to her husband from the negligence of the defendant in the management of a horse. Her loss is that which usually occurs to a wife from the illness of a husband, in the deprivation of support and consortium and the need of her personal care for him during his sickness. No case is cited where the wife recovered upon such a claim, and the absence of precedent, where such demands might have been numerous, if sustained by the law, goes far to the belief that such negligence has never yet been embraced within the circle of causes of action recognized by law, beyond the right given to the injured one, and its survival to the consort and next of kin in the event of his death. It is true that this century just closing has seen, with our own state foremost in the advance, the adoption by unwritten and statutory law of juster and wider views of the wife's existence as a human being, by the emancipation of her person from 'the moderate chastisement' of the husband, and the protection of her rights of property; but her interest in the husband's life and companionship is not a right of property, or derived from a contract of bargain and sale. That interest lies in a region into which the law does not enter except when necessity compels. It does recognize invasion by wilful misconduct. It inflicts heavy damages upon the enticer or seducer. But this is for punishment and atonement rather than compensation. It comes within the range of concurrent and supplementary adjuncts to the criminal law for the prevention and redress of wrongs. The fault or negligence rarely demands a greater remedy than mere compensation. The right of action is remedial, not punitive. ...