Deshotel v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 19 December 1957
• Citation: 319 P.2d 357
• Parties: Eloyce DESHOTEL, Plaintiff and Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, William M. Floyd, Yellow Cab Company, a corporation, Archie Hughes, First Doe, Second Doe and Black & White Company, Defendants and Respondents. * Civ. 17444.
• Court: California Court of Appeals Court of Appeals

Page 357

319 P.2d 357

Eloyce DESHOTEL, Plaintiff and Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, William M. Floyd, Yellow Cab Company, a corporation, Archie Hughes, First Doe, Second Doe and Black & White Company, Defendants and Respondents. ^*

Civ. 17444.

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

Dec. 19, 1957.

Rehearing Denied Jan. 17, 1958.

Hearing Granted Feb. 11, 1958.

Plaintiff and appellant is the wife of Dewey Deshotel, Jr. The husband suffered such serious injuries in a collision between a taxi-cab in which he was a passenger and one of respondent's trains that he will be completely incapacitated for life, requiring the daily care of a nurse. See Deshotel v. Atchison, T. & S. F. Ry. Co., 144 Cal.App.2d 224, 229, 300 P.2d 910, for a general description of his condition. For these injuries he recovered a judgment of $290,000 which was affirmed in the cited case.

The wife brought this action alleging that by reason of her husband's injuries she 'has been denied the care, companionship, aid and society of her husband * * * and will be permanently deprived of her husband's consortium * * *.' The trial court sustained respondent's demurrer without leave to amend and plaintiff appeals from the judgment following this order.

The appeal presents a question never decided in this jurisdiction, whether a wife has a cause of action for the loss of her husband's consortium caused by the negligent act of a third person.

Following the dictum in Meek v. Pacific Electric Ry. Co., 175 Cal. 53, 56, 164 P. 1117, 1118 ('* * * aside from consideration of her society, or what is termed the consortium, damages for which are not recoverable in this state * * *') it was at least doubtful in California whether either husband or wife had such a cause of action. The right of the husband to such a recovery has now been settled in his favor by Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003, hearing denied by the Supreme Court. In that case the language above quoted from Meek v. Pacific Elec. Ry. Co., supra, was characterized as an 'inadvertent dictum,' the court adding: 'In view of the failure of the legislature to forbid recovery for such loss, it would be unreasonable to conclude that the loss of enjoyment of the sex relation by either party to a marriage is not recoverable from him who caused such loss.' 136 Cal.App.2d at pages 255-256, 288 P.2d at page 1008. That court concluded (136 Cal.App.2d at page 257, 288 P.2d at page 1009): 'The parties to a marriage are each entitled to the comfort, companionship and affection of the other. Any interference with the right of either spouse to the enjoyment of the other is a violation of a natural right as well as a legal right arising from the marriage relation.' The court cited in support of the latter statement Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, hereinafter discussed.

In view of the alomst complete emancipation of married women from their fuedal condition of servitude to their husbands which existed in the early common law (a matter discussed so ably by the court in Follansbee v. Benzenberg, 122 Cal.App.2d 466, 476-477, 265 P.2d 183, 42 A.L.R.2d 832) logic would seem to dictate that since the wife's right to the companionship, society and sexual relations of her husband are coequal with his she should have a co-equal right with him to recover against the negligent tort feasor whose act has deprived her of them. Were it not for the almost unbroken line of authority in other jurisdictions up to 1950, denying this right to the wife, while conceding it to the husband, we could rest our decision on the Gist and Follansbee cases, above cited. However, relying on the authorities from other jurisdictions denying this right to the wife (see cases collected in the note, 23 A.L.R.2d 1389), respondent argues that the wife had no such right at common law and since none has been expressly granted to her by statute the common law rule is still applicable in California.

The development of the case law in this respect in other jurisdictions has presented an anomaly which the legal writers generally have openly criticized and the courts of several jurisdictions have come to recognize since the decision of the Court of Appeals in the Hitaffer case, supra, 183 F.2d 811. With the general adoption of the so-called Married Women's Acts, emancipating married women from their common-law servitude, the courts of this country generally have agreed that for intentional injury to the right of consortium, as by alienation of affections, criminal conversation and (with greater disagreement) the furnishing of habit forming drugs to the husband, the wife had a cause of action for the injury to the right of consortium resulting therefrom. 42 C.J.S. Husband and Wife § 661, p. 316; § 698a, p. 352; 2 Cooley on Torts, 4th Ed., § 170, pp. 20-24; 1 Harper, The Law of Torts, § 8.3, pp. 611-612; Prosser on Torts, 2d Ed., § 103, p. 691; § 104, p. 705; Rest. Torts, §§ 690, 697. While, until its amendment in 1939, Civil Code section 49 gave to the wife a right of action for alienation of affections (Humphrey v. Pope, 122 Cal. 253, 54 P. 847), in view of the development of the law elsewhere above outlined this may be taken as the codification of a right inhering in the wife at common law (Civ.Code, § 5), and independent of this statute our Supreme Court aligned itself with the majority of the courts of other jurisdictions in giving the wife a cause of action for intentional interference with the right of consortium in Work v. Campbell, 164 Cal. 343, 128 P. 943, 43 L.R.A.,N.S., 581. (Separation from husband induced by fraudulent representations made to the wife by the defendant.) The court in this case held that the cause of action was not dependent on Civil Code, section 49 (164 Cal. at page 346, 128 P. 943) and so the case constitutes a direct holding that independent of any statute the wife has a right in the marital consortium the wrongful interference with which gives her a cause of action against the wrongdoer.

In Eliason v. Draper, 25 Del. 1, 77 A. 572, the Delaware court summarizes the holdings of the courts of various jurisdictions up to that date (1910) on the right of the wife to a remedy for the intentional interference with her right of consortium. The court groups these cases into four classes (77 A. at page 574) as follows:

'The cases in the first class decide that remedial statutes [i. e., Married Women's Acts], such as ours, do nothing more than enable a wife to sue alone only in those cases in which she could sue before with her husband joined. They hold that the nonexistence of a remedy indicates the absence of a right, and, as in an action of this character the wife had no remedy at common law, there is none given her by the statutes. * * * [Citing and Discussing cases.]'

Parenthetically we may point out that our Supreme Court aligned itself against this view in Work v. Campbell, supra, 164 Cal. 343, 128 P. 943, since in that case it recognized the wife's right of action for loss of consortium in the absence of any express statutory authorization.

Continuing the quotation:

'The cases in the second class hold that as the loss of service is not an ingredient of the action, and as the right of a husband and wife to the society of the other is reciprocal, a wife had at common law a right of action for the alienation of her husband's affection, though considered by some to have been held in abeyance, and that she may now maintain such an action in the absence of statute and independent of enabling or remedial enactments. * * * [Citing cases.]

'The cases in the third class hold that notwithstanding the anomalous position in which a married woman found hereself at common law, in not being able to sue in an action of this character without her husband, for one reason, and not being able to sue with him for another reason, those remedial statutes which give to a married woman a right of action in her own name for the redress of her own personal wrongs, torts and injuries are, by such terms, sufficiently comprehensive to include the right to sue when the tort consists in the alienation of her husband's affection. * * * [Citing cases.]

'The cases in the fourth class recognize the right of a husband to the consortium of his wife as a property right, and reason that with respect to matters of conjugal society and affection the husband owes to the wife all that she owes to him; and upon the same principle the wife's right is a property right, which in its broad sense 'includes things intangible and invisible and applies to whatever is exclusively one's own,' for an injury to which she may sue by force of those statutes which empower a married woman to sue for the preservation and protection of her own property as if unmarried. * * * [Citing cases.]

'The confusion of opinion upon this subject evidently has been occasioned by confusing a married woman's rights with her remedies, and considering the removal of her disabilities * * * from the standpoint of her former remedies rather than from the standpoint of her former rights. This question is solved if it be found that at common law the wife had a right to the thing for the enforcement of which the law disqualified her by coverture, and if it also be found that the statutes have relieved her of her disqualifications of coverture and left her with her right undisturbed. * * *

'The right of the wife to the consortium of the husband was likewise recognized at common law * * * though a right of action for its invasion was denied her because of the common-law doctrine of identity of person and its consequent trammels of technical procedure. Nevertheless her right existed, and its existence was recognized and enforced by the ecclesiastical courts in a suit by her for the restitution of conjugal rights * * * 3 Blac.Com. 94; Orme v. Orme, 2 Addams Eccl.Rep....