Elling v. Blake-McFall Co.

• Decision Date: 10 July 1917
• Citation: 85 Or. 91,166 P. 57
• Parties: ELLING v. BLAKE-MCFALL CO.
• Court: Oregon Supreme Court

166 P. 57

85 Or. 91

ELLING v. BLAKE-MCFALL CO.

Supreme Court of Oregon

July 10, 1917

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Franz H. Elling against the Blake-McFall Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff brings this action against the defendant company for the loss of consortium of his wife and for personal injuries sustained by himself on account of the negligence of the defendant. It is alleged, in substance, that at all the times mentioned in the complaint plaintiff and Christine Louise Elling, deceased, were husband and wife; that on July 15, 1914, they were riding as guests in an automobile operated by one J. W. Fournier which was proceeding in an easterly direction on East Burnside street in the city of Portland, Or.; that at the same time a machine driven by one Emery, an agent and employé of the defendant, was moving in a southerly direction on East Twenty-Fourth street; that the two automobiles collided as a result of the negligence of the defendant's employé, in which collision the plaintiff was severely injured, and his wife then and there sustained injuries from the effects of which she subsequently died that at the time of her death she was strong and healthy and by reason of the premises and of her untimely decease the plaintiff has been and is deprived of the society, comfort companionship, consortium, and services of his wife, and has been and is thereby permanently injured and damaged in the full sum of $10,000.

For a second cause of action plaintiff avers that because of the negligence of the defendant he sustained personal injuries to his damage in the sum of $5,000, and that he expended the sum of $159 for hospital and medical bills. The answer denies the allegations of negligence, admits that the deceased wife was killed as a result of the accident, and affirmatively sets up contributory negligence of the driver of the automobile in which the plaintiff was riding, in that the machine was proceeding at an excessive rate of speed and the plaintiff aware of it, did not caution nor remonstrate with him on this account. The reply put in issue the affirmative allegations of the answer. Upon the second trial of the cause before the court and jury a verdict was returned in favor of plaintiff for the sum of $3,184. After the rendition of the judgment thereon defendant appealed.

F. C Howell, of Portland (Dolph, Mallory, Simon & Gearin and Wilbur, Spencer & Beckett, all of Portland, on the brief), for appellant. E. K. Oppenheimer and W. E. Farrell, both of Portland (Davis & Farrell and A. M. Dibble, all of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

It is submitted on behalf of defendant that the plaintiff husband cannot recover for the loss of consortium of his wife due to the negligence of the defendant. In its charge to the jury the trial court limited such loss, if any, to the time intervening between the injury and the death of the wife. Marri v. Stamford St. R. Co., 84 Conn. 9, 78 A. 582, 33 L. R. A. (N. S.) 1042, Ann Cas. 1912B, 1120, is among the authorities supporting defendant's position. The rule enunciated there is not in harmony with the great weight of authority.

The legislation of modern times has greatly affected the status of married women by the recognition of their rights to a separate existence, thus empowering them to exercise dominion over their separate property, and to contract, and conferring upon them power to sue or be sued; but it has not in any wise abridged the common-law right of a husband to the companionship, love, and services of his wife which are comprehended in the term "consortium" and his accompanying right to sue therefor, in the event of its loss occasioned by some personal injury to her negligently inflicted by a third person. Note 33 L. R. A. (N. S.) pp. 1042-1046; City of Chattanooga v. Carter, 132 Tenn. 609, 179 S.W. 127; Southern R. Co. v. Crowder, 135 Ala. 417, 33 So. 335; Union P. R. Co. v. Jones, 21 Colo. 340, 40 P. 891; Blair v. Bloomington & N. R. Elec. & Heating Co., 130 Ill.App. 400; City of Wyandotte v. Agan, 37 Kan. 528, 15 P. 529; Mageau v. Great No. Ry. Co., 103 Minn. 290, 115 N.W. 651, 946, 15 L. R. A. (N. S.) 511, 14 Ann. Cas. 551; Little Rock, etc., Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885; Indianapolis & M. Rapid Transit Co. v. Reeder, 51 Ind.App. 533, 100 N.E. 101; Omaha & R. Valley Co. v. Chollette, 41 Neb. 578, 59 N.W. 921; Booth v. Manchester St. R. Co., 73 N.H. 529, 63 A. 578; Baltimore & O. R. Co. v. Glenn, 66 Ohio St. 395, 64 N.E. 438; Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280; Birmingham So. R. Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461; Denver Consol. Tramway Co. v. Riley, 14 Colo. App. 132,150 59 P. 476; ver & Rio Grande R. Co. v. Young,

30 Colo. 349, 70 P. 688; Georgia R. & Banking Co. v. Tice et al., 124 Ga. 459, 52 S.E. 916, 4 Ann. Cas. 200; Hutcheis v. Cedar Rapids & Marion City Ry. Co., 128 Iowa, 279, 103 N.W. 779; Chicago & M. Elec. R. Co. v. Krempel, 116 Ill.App. 253; Atchison, Topeka & Santa Fé R. Co. v. Dickey, 1 Kan. App. 770, 41 P. 1070; Atchison, Topeka & Santa Fé R. Co. v. McGinnis, 46 Kan. 109, 26 P. 453; City of Eskridge v. Lewis, 51 Kan. 376, 32 P. 1104; Riley v. Lidtke, 49 Neb. 139, 68 N.W. 356; Mewhirter v. Hatten, 42 Iowa, 288, 20 Am. Rep. 618; London v. Cunningham, 1 Misc. Rep. 408, 20 N.Y.S. 882; McKinney v. Western Stage Co., 4 Iowa, 420; Kirkpatrick v. Metropolitan St. R. Co., 129 Mo.App. 524, 107 S.W. 1025; Partello v. Mo. P. R. Co., 141 Mo.App. 162, 107 S.W. 473; Reagan v. Harlan, 24 Pa. Super. Ct. 27, and cases there cited; Hewitt v. Penn. R. Co., 228 Pa. 397, 77 A. 623; Caswell v. No. Jersey St. R. Co., 69 N. J. Law, 226, 54 A. 565; McMeekin v. Pittsburg R. Co., 229 Pa. 572, 79 A. 133.

The enabling statutes were not intended to accomplish such a result as insisted upon by the defendant. The conjugal partnership between husband and wife still exists with its bonds of love, affection, and devotion, together with the attendant privileges and filial duty to each to contribute to the care and attention of the household, the comfort and convenience of each other, and the care, nurture, and education of the children, in accordance with their mutual scriptural obligation. In all these relations and more the wife is and should be the helpmeet of the husband in conformity with their necessities and station in life without the expectation of pecuniary compensation or claim for the same. We are not in accord with the assertion that a husband is entitled to recover damages for the loss of the services of his wife only in actions for seduction, alienation of affections, and the like. See Ainley v. Manhattan R. Co., 47 Hun (N. Y.) 206; 3 Blackstone, ^*139; 1 Cooley on Torts (3d Ed.) 470.

Compensation for the loss by a husband of consortium of his wife is...