City of Glendale v. Bradshaw By and Through Bradshaw

• Decision Date: 27 November 1972
• Docket Number: No. 10832--PR,10832--PR
• Citation: 108 Ariz. 582,503 P.2d 803
• Parties: CITY OF GLENDALE, a political subdivision of the State of Arizona, Appellant and Cross-Appellee, v. Glen BRADSHAW, By and Through Corena BRADSHAW, Guardian of the Person and of the Estate of Glen Bradshaw, an Incompetent, and Corena Bradshaw, his wife, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 803

503 P.2d 803

108 Ariz. 582

CITY OF GLENDALE, a political subdivision of the State of Arizona, Appellant and Cross-Appellee, v. Glen BRADSHAW, By and Through Corena BRADSHAW, Guardian of the Person and of the Estate of Glen Bradshaw, an Incompetent, and Corena Bradshaw, his wife, Appellees and Cross-Appellants.

No. 10832--PR.

Supreme Court of Arizona, In Banc.

Nov. 27, 1972.

Rehearing Denied Dec. 19, 1972.

Jack M. Anderson, John S. Schaper, Phoenix, attorneys for appellant and cross-appellee.

Divelbiss & Gage, by G. David Gage, Phoenix, for appellees and cross-appellants.

J. LaMar Shelley, Mesa, Snell & Wilmer, by Mark Wilmer, Phoenix, for amicus curiae, League of Arizona Cities and Towns.

LOCKWOOD, Justice:

We accepted this petition for review to decide the sole issue of whether a wife can recover for loss of consortium when her husband is injured by the negligent act of a third person.

On February 23, 1969 Veryl Evelyn Fandrey was driving her car north on 55th Avenue in the City of Glendale. One of the plaintiffs, Glen Bradshaw, was a passenger in the automobile. At the intersection of 55th Avenue and Royal Palm Road there was an unmarked dirt mound constructed by the City of Glendale. Fandrey did not see the mound and her vehicle struck it, flew into the air, and hit the ground with great force.

The plaintiff as a result of the accident sustained severe brain damage, the loss of the sight of one eye and lacerations and abrasions covering his face and body. Glen Bradshaw, by and through Corena Bradshaw, his wife and guardian, brought suit against the City of Glendale and Veryl Evelyn Fandrey for his injuries. Mrs. Bradshaw also brought suit in her own behalf for her loss of her husband's consortium, including his care, companionship, guidance and other marital rights.

A verdict was returned by the jury against both defendants in the amount of $280,000 for actual damages to Mrs. Bradshaw. Mrs. Bradshaw's claim for damages arising out of the loss of consortium was dismissed. An appeal was filed by the City of Glendale and a cross-appeal was filed by Mrs. Bradshaw for her own claim. The Court of Appeals affirmed all portions of the jury verdict. We hold that the judgment of the Superior Court pertaining to the liability of each defendant is affirmed. However, that portion of the judgment which denied Mrs. Bradshaw's claim for loss of consortium is reversed. That portion of the Court of Appeals' opinion affirming the judgment as to denial of Mrs. Bradshaw's claim is vacated. City of Glendale v. Bradshaw, 16 Ariz.App. 348, 493 P.2d 515 (1972), rehearing denied, 16 Ariz.App. 483, 494 P.2d 383 (1972), affirmed in part and reversed in part.

In a case decided in 1954 this court embraced the common law rule prohibiting recovery by the wife for loss of consortium. Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954). The question we are presented with today is whether we should now overrule that decision. Examination of the historical origins of the common law rule is essential to the disposition of that question.

The common law rule granting a right of consortium to the husband but denying it to the wife, reflected the same attitude as existed with regard to rights of married women. Upon marriage, the husband and wife became one, for many purposes, and the husband was that one.

'By marriage, the husband and the wife are one person in the law; that is the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.' 1 Blackstone, Commentaries

Page 430

It is not surprising then that the law recognized the husband's right to the wife's services, affection and companionship and permitted recovery against third persons when that right was interfered with. This rule persisted in the courts until changes in married women's rights began to come about and many states adopted the Married Woman's Property Act. See A.R.S. § 25--214, as amended.

At the present time at least twenty-six states ¹ and the District of Columbia have granted wives the right to sue for loss of consortium for the negligent injury of their husbands.

'We have been unable to disclose any substantial rationale on which we would be willing to predicate a denial of the wife's action for loss of consortium due to a negligent injury to her husband.' Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 at 813 cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), (overruled in part on other issues), Smither & Co., Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220, cert. denied, 354 U.S. 914, ...