Butcher v. Superior Court

• Decision Date: 11 January 1983
• Citation: 139 Cal.App.3d 58,188 Cal.Rptr. 503
• Court: California Court of Appeals Court of Appeals
• Parties: , 40 A.L.R.4th 539 Ralph Lloyd BUTCHER, III, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Cynthia Lynn FORTE, Real Party in Interest. Civ. 29076.

Page 503

188 Cal.Rptr. 503

139 Cal.App.3d 58, 40 A.L.R.4th 539

Ralph Lloyd BUTCHER, III, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent Cynthia Lynn FORTE, Real Party in Interest.

Civ. 29076.

Court of Appeal, Fourth District, Division 2, California.

Jan. 11, 1983.

[139 Cal.App.3d 59] Parker, Stanbury, McGee, Babcock & Combs, Robert J. Moss and Robert A. Walker, Santa Ana, for petitioner.

Memel, Jacobs, Pierno & Gersh, Stanley K. Jacobs and Theresa M. Marchlewski, Los Angeles, for real party in interest.

No appearance for respondent.

OPINION

TROTTER, Associate Justice. ^*

This case involves a unique and interesting issue: whether the "spouse" in a nonmarital cohabitation arrangement may state a cause of action for loss of consortium when the other "spouse" is injured by a third party.

FACTS

Paul Forte was walking across the street when he was allegedly struck by Ralph Butcher's Volkswagen. Paul suffered a fractured neck, forearm and leg, and a severe cerebral contusion. Paul sued Butcher for personal injuries. Cindy Forte sued as Paul's wife for loss of consortium with Paul. In pretrial discovery, Butcher learned that Cindy and Paul did not have a valid legal marriage, although Cindy testified at her deposition that she and Paul had a "common law" marriage.

Paul and Cindy began living together on September 11, 1969. Since that time, Cindy has used the name Forte. At the time of the accident, March 28, 1981, Paul and Cindy had been living together as husband and wife for 11 1/2 years. They had two children together, filed joint income tax returns, and maintained joint savings and checking accounts. Paul acknowledges and refers to Cindy as his wife. Cindy testified that she and Paul had a common law marriage, and she considered them to be married as of September 11, 1969.

Upon learning that there had been no valid legal marriage between Cindy and Paul, Butcher moved for summary judgment on Cindy's claim for loss of consortium. After argument, the trial court denied the motion for summary judgment. Defendant Butcher now petitions this court for a writ of mandate to compel the trial court to grant the motion for summary judgment.

DISCUSSION

1. Theory of Consortium Cause of Action

Butcher argues that there can be no claim for loss of consortium without a valid legal marriage because the right to consortium grows out of the marriage.

The notion that a valid legal marriage is a prerequisite to the cause of action for loss of consortium has its origin in the common law view that the wife was more or less a servant or chattel of the husband, and that therefore he was entitled to an independent cause of action if the wife were injured, since the tortfeasor would have damaged the husband's property rights in the services and society of the wife. (See, e.g., Chicago, B. & Q.R. Co. v. Honey (8th Cir.1894) 63 F. 39.)

The theory of the cause of action for loss of consortium has changed, however, since its early common law statement of proprietary entitlement. The wife is no longer a chattel or servant. The element of loss of services is no longer the essence of the cause of action. The real damage is to what may be called a relational interest. An interference with the continuance of the relation, unimpaired, may be redressed by a tort action. (Prosser, Torts (4th ed. 1971) § 124, p. 873.)

There are many evidences of a shift from the proprietary entitlement theory of consortium to a relational interest theory. First were the cases which finally allowed the wife as well as the husband to state a claim for loss of consortium. The rule that the husband alone had such a cause of action has "no other justification than that of history .... The loss of 'services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband." (Prosser,supra, § 125, pp. 894-895.)

The cases cited by Butcher for the proposition that a valid legal marriage is a prerequisite to a cause of action for loss of consortium involve injuries which occurred before the marriage. While some of the cases simply couple the chattel notion with a sort of caveat emptor doctrine (the husband takes the wife "as is," and cannot recover for the premarital injury (Georgia Northern Ry. Co. v. Sharp (1917) 19 Ga.App. 503, 91 S.E. 1045; Booth v. Baltimore & O.R. Co. (1915) 77 W.Va. 100 )), other cases seem to recognize the relational interest involved. For example, in Donough v. Vile (1947) 61 Pa.D. & C. 460, the wife had been injured before the marriage. The court held that the husband had no cause of action for loss of consortium. "Damages for the loss of consortium are intended to compensate for an injury done to the connubial relationship. It would therefore appear that where the marriage relationship does not exist at the time of the tort, a cause of action cannot be created by a marriage subsequent thereto." (Id., at pp. 461-462.)

This is no more than to state that the cause of action protects the parties' relational interest, and if the relationship did not exist at the time of the tort, a fortiori it could not be injured. In fact, application of this principle to all of the premarital injury cases would lead to the same result in each case. If the injury occurs before the relationship is established, when the parties are engaged, or acquainted, or perhaps total strangers to one another, then the interest in continuing the relationship undisturbed has not been injured.

While limiting the type of relationship recognized to a legal marriage, the court in Sawyer v. Bailey (Maine 1980) 413 A.2d 165, at page 167 stated that "the law is concerned with the protection of the 'relational' interests of married persons and recognizes as an actionable tort any interference, intentional or negligent, with the continuation of the relation of husband and wife, such as the right to damages for the loss of consortium of either one of the spouses." (Emphasis in original.) The court further recognized that "as a common law court we have the power to grant a new cause of action for the redress of rights, or, as requested by the plaintiff in the instant case, to expand the cause of action for the recovery of damages for loss of consortium in a tortious injury case so as to encompass parties who are engaged to marry at the time of the tortious incident and who thereafter do marry. [p] ... We recognize that the plaintiff had an inchoate expectation that third persons would use reasonable care in relation to the person of his fiancee so that his prospective marital rights would not be infringed. Although our society regards it of the highest primacy that a remedy be afforded for the redress of wrongs caused by tortious conduct [citation], nevertheless, we discern countervailing policy factors which persuade us to confine consortium rights to cases where the tortious injury occurred while the parties were married, one to the other." (Ibid.)

Thus, while refusing to extend the doctrine beyond the bounds of legal marriage for policy reasons, courts have clearly recognized and redefined the theory of the tort to be an interference with the continuation of the relational interest.

2. Policy Arguments

We next address the argument that, even recognizing an unmarried person's interest in the continuation of the relationship with the nonmarital partner (Sawyer v. Bailey, supra, 413 A.2d 165), policy reasons dictate limiting those interests to the legally married. Recent cases speak in terms of judicial linedrawing; whether the line should be drawn to include or exclude the interest of a nonmarital cohabitant.

Some policy considerations which would arguably limit recognition of the relational interest to legally married couples are: (a) lack of precedent for extending the cause of action to unmarried couples, (b) the injury to the unmarried partner is too indirect, (c) the damages would be too speculative, (d) there is a danger of double recovery, (e) the cause of action would be extended to other classes of plaintiffs, and (f) public policy favors marriage.

The argument that recovery for loss of consortium in a nonmarital relationship breaks new ground and is without precedent, or that it should be left to legislative action "[i]n effect ... is a request that courts abdicate their responsibility for the upkeep of the common law. That upkeep it needs continuously, as this case demonstrates." (People v. Pierce (1964) 61 Cal.2d 879, 882, 40 Cal.Rptr. 845, 395 P.2d 893.)

"In California as in other jurisdictions of Anglo-American heritage, the common law 'is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs, but is rather the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice and adopted by common consent for the regulation and government of the affairs of men.... [p] The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.' " (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 393-394, 115 Cal.Rptr. 765, 525 P.2d 669; 15A Am.Jur.2d, Common Law, §§ 1, 3, pp. 594-596, 597-598.)

"This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law." (Hurtado v. California (1884) 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232, 237.)

"But that vitality can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it: 'The nature of the...