Feneff v. New York Cent. & H.R.r. Co.

• Citation: 89 N.E. 436,203 Mass. 278
• Parties: FENEFF v. NEW YORK CENT. & H. R. R. CO.
• Decision Date: 19 October 1909
• Court: United States State Supreme Judicial Court of Massachusetts

203 Mass. 278

89 N.E. 436

FENEFF v. NEW YORK CENT. & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1909

COUNSEL

Clarence E. Tupper, for plaintiff.

Ralph A. Stewart and L. R. Chamberlin, for defendant.

Chas M. Thayer and Alex. H. Bullock, for Boston & M. R. R.

OPINION

KNOWLTON C.J.

The plaintiff's husband was injured physically and mentally by the negligence of the defendants, and he has recovered full compensation for his injuries. Feneff v. Boston & Maine Railroad et al., 196 Mass. 575, 82 N.E. 705. The plaintiff sues for damages suffered by her from his injury by reason of her relation to him as his wife. In her declaration she avers that, by reason of his disability, she has endured great suffering and anxiety, and has been obliged to assume heavy and arduous duties which she did not have to assume before the injury, and that she has lost the comfort society, aid and assistance of her husband. In her bill of exceptions she says that the action is 'for the loss of consortium.' This statement covers the case; for it is plain that the other averments in her declaration do not show an invasion of a legal right, nor anything more than a remote and consequential damage which did not result from any wrong done directly to her.

The right of consortium is a right growing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together. At the common law, the husband had a right to the labor and services of his wife, and in suing for the damages which are personal to the husband for an injury to his wife, he was permitted to recover, not only for the expenses of her care and cure, but for his loss of her labor and services and the loss of consortium. Kelley v. N. Y., N.H. & H. R. R., 168 Mass. 308, 46 N.E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397, and cases there cited. It is said in that case, and in Nolan v. Pearson, 191 Mass. 283-286, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605, that a wife could not maintain and action at common law for the loss of consortium of her husband. The reason of this was that she could not sue in her own name for a personal injury, and that a recovery for such a wrong could only be had in a suit brought jointly by her and her husband. The right to the consortium of the other spouse seems to belong to husband and wife alike, and to rest upon the same reasons in favor of each. Since the removal of the wife's disability to sue this is now settled in most courts by a great weight of authority. Nolan v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605, and cases cited. It is now generally held, in accordance with the decision in Nolan v. Pearson, that, for a direct and intentional invasion of a wife's right of consortium by another woman, through the alienation of the husband's affections and criminal conversation with him, an action may be maintained, as a similar action may be maintained by a husband for a similar wrong inflicted through adultery with his wife. Formerly a wife could not maintain such an action, because her suit could only be brought by her husband, with whom she must join. The husband's own misconduct would ordinarily be a sufficient reason to prevent his bringing such a suit, if, indeed, it would not bar him, in most cases, from maintaining an action against a joint wrongdoer. The change of the statutes in this commonwealth and similar changes in most other jurisdictions have given wives the same right as husbands to sue an offender for a wrong of this kind.

The wrong which may be redressed through such suits is one which has a direct tendency to deprive the husband or wife of the consortium of the other spouse. No case has been brought to our attention, and after an extended examination we have found none, in which an action for a loss of consortium alone has been maintained merely because of an injury to the person of the other spouse, for which the other has recovered, or is entitled to recover, full compensation in his own name, when the only effect upon the plaintiff's right of consortium is that, through the physical or mental disability of the other, the...