Hastings v. James River Aerie No. 2337-Fraternal Order of Eagles

Decision Date05 November 1976
Docket NumberNo. 9247,9247
Citation246 N.W.2d 747
PartiesMary E. HASTINGS and Karen E. Hastings, by her next friend, Mary E. Hastings, Plaintiffs and Appellants, v. JAMES RIVER AERIE NO. 2337--FRATERNAL ORDER OF EAGLES, a corporation, et al., Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Loss of consortium is an injury to property under North Dakota's Civil Damage or Dram Shop Act. Section 5--01--06, N.D.C.C.

2. A wife, as well as a husband, has a right to recover for loss of consortium of a spouse.

3. A wife's right to recover for loss of consortium of spouse, under North Dakota Civil Damage or Dram Shop Act, must be recognized in order to avoid violating special privileges clause of Section 20 of North Dakota Constitution and equal protection clause of Fourteenth Amendment to United States Constitution.

4. There is no rational basis for allowing husbands a right to recover for loss of consortium and not recognizing a similar right in wives.

5. For the reasons stated in the opinion, a child may not, either before or after reaching majority, recover for the loss of counsel and guidance under North Dakota's Civil Damage or Dram Shop Act. Section 5--01--06, N.D.C.C.

6. There is a rational basis for distinguishing between an action for the loss of consortium of a husband or wife and that of an action by a child for the loss of counsel and guidance of a parent.

MacKenzie & Jungroth, Jamestown, for plaintiffs and appellants; argued by James R. Jungroth, Jamestown.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for defendant and appellee, James River Aerie No. 2337--Fraternal Order of Eagles, a corporation; argued by Russell G. Nerison, Jamestown.

Vogel, Vogel, Brantner & Kelly, Fargo, for defendant and appellee, Ernest DeNault Robertson Post No. 14--American Legion; argued by Mart R. Vogel, Fargo.

ERICKSTAD, Chief Justice.

In this case, Mary E. Hastings, as the wife of Norman R. Hastings, and Karen E. Hastings, the daughter of Mary and Norman, through her mother as next friend, bring an action under our Dram Shop Act, Section 5--01--06, N.D.C.C. Their action is to recover damages from three licensed liquor dealers in the City of Jamestown North Dakota, for their sale or gift of alcoholic beverages to Mr. Hastings when he was intoxicated. They allege that this caused him to be convicted of the crime of second degree murder in the shooting death of one Evangeline Opp, resulting in his commitment to the State Penitentiary for seven to ten years.

In paragraph eight of the complaint, Mrs. Hastings asserts that she was deprived of the support, society, companionship, counsel, and guidance of her husband to her damage in the amount of $250,000, and that her daughter, Karen, was deprived of the support, advice, and counsel of her father, to her damage in the amount of $250,000.

In paragraph nine of the complaint, it is asserted that some of the damage suffered by Mary Hastings for the loss of support, society, companionship, counsel, and guidance of her husband will be permanent, and that some of the damage suffered by Karen E. Hastings, because of the lack of support, advice, and counsel of her father, will be permanent.

Prior to answering the complaint, one of the defendants, James River Aerie No. 2337, Fraternal Order of Eagles, moved to strike the words 'society, companionship, counsel and guidance' from that part of paragraph eight of the complaint relating to Mrs. Hastings' claim, and to strike the words 'advice and counsel' from that part of paragraph eight of the complaint relating to Karen's claim. In addition, the Eagles moved to strike all of paragraph nine of the complaint.

It is from the trial court's order granting the motion to strike that the Hastings appeal to this court.

In addition to the appeal, three questions have been certified to this court pursuant to Chapter 32--24, N.D.C.C. Those questions are whether, under the Civil Damage Act, Section 5--01--06, N.D.C.C., (1) a wife can recover for the loss of consortium, (2) a child can recover for the loss of counsel and guidance before majority, (3) a child can recover for the loss of counsel and guidance after majority.

The statute under which recovery is sought reads:

'Every wife, child, parent, guardian, employer, or other person who shall be Injured in person, property or means of support by any intoxicated person, or in consequence of intoxication, shall have a right of action against any person who shall have caused such intoxication by disposing, selling, bartering, or giving away alcoholic beverages contrary to statute for all damages sustained.' § 5--01--06, N.D.C.C. (Emphasis added.)

At English common law, a husband's right to recover for the loss of his wife's consortium was considered a property right. Foot v. Card, 58 Conn. 1, 18 A. 1027, 1028 (1889); 3 W. Blackstone, Commentaries

Page 143

Blackstone uses the term 'property' in the same context in which we use the word 'right'. The court in Foot v. Card, supra, uses the two words interchangeably. Foot was written in 1889, one year prior to the adoption of North Dakota S.L.1890, Ch. 110, Section 15, which is the source of the phrase 'person, property, or means of support' found in Section 5--01--06, N.D.C.C. Several other cases of that approximate time period viewed consortium as a property right, many of them quoting or citing Foot with approval. E.g. Lockwood v. Lockwood, 67 Minn. 476, 70 N.W. 784, 785 (1897); Price v. Price, 91 Iowa 693, 60 N.W. 202, 203 (1894). See Iszler v. Jorda, 80 N.W.2d 665 (N.D.1957); Larisa v. Tiffany, 42 R.I. 148, 105 A. 739 (1919); Warren v. Warren, 89 Mich. 123, 50 N.W. 842 (1891); Jaynes v. Jaynes, N.Y., 39 Hun. 40 (1886).

We conclude that a Right of consortium is Property under Section 5--01--06, N.D.C.C.

It is argued, however, that at English common law a wife could not recover damages for the loss of a husband's consortium, and, accordingly, injury to property does not include a wife's right to recover for loss of consortium under the Dram Shop Act.

What does loss of consortium involve? What was the rule at common law and has the rule been changed, and, if so, is there any trend to be noted?

Because the best general analysis of this subject is contained in 36 A.L.R.3d 900, we quote extensively therefrom for background, commencing at page 904.

'Before 1950, the year in which Hitaffer v. Argonne Co. was decided, the prevailing view in almost all states was that a wife did not have a common-law cause of action for loss of her injured husband's consortium due to the negligence of a third person. Although the Hitaffer Case was later overruled on another point, it is recognized as the leading case in which it was held that a wife has a common-law action against a negligent tortfeasor for loss of her husband's consortium. The courts in a number of other jurisdictions have since adopted the reasoning of the Hitaffer Case, overruling their earlier decisions to the contrary. On the other hand, a number of courts have rejected the reasoning of the Hitaffer Case and have refused to permit the wife to recover for loss of consortium.

'The principal reasons for denying the wife a cause of action for loss of her husband's consortium due to the negligence of a third person are (1) It would result in double recovery of damages; (2) the loss is too indirect and remote from the wrongful act; (3) it would result in a multiplicity of actions by other persons, such as children, relatives, business partners, and other persons who are either related to or dependent upon the injured person; and (4) if the law on this point is to be changed, it is a matter that can best be handled by the legislatures rather than the courts.

'The argument that recovery by the wife for loss of consortium would result in double recovery of damages arises from a lack of clarity as to what the term 'consortium' means. Most courts agree that consortium includes such items as love, companionship, affection, society, comfort, solace, support, sexual relations, and services. It has been argued that since the injured husband is entitled to damages for impairment of his capacity to work, to enjoy life, and to engage in the so-called normal pursuits of life, to allow the wife to recover damages for loss of her husband's services would result in double recovery. Although the courts that have given the wife a cause of action for loss of consortium recognize the danger of double recovery, they point out that the matter can be solved by limiting the wife's recovery to the 'nonpecuniary' or 'sentimental' aspects of consortium, and that any damages awarded to the wife for loss of her husband's services can simply be deducted from the award.

'The courts which allow the wife to recover for loss of consortium reject the argument that recovery should be denied because the loss is too remote and indirect, pointing out that if the husband is allowed to recover for loss of his wife's consortium, the wife's loss of her husband's consortium is no more indirect or remote.

'Most of the courts that have refused to permit the wife to recover for loss of her injured husband's consortium do so on the ground that she had no cause of action at common law, and if the common law is to be changed, it is a matter of such far-reaching public policy that it can best be changed by the legislature. These courts point out, for example, that if recovery were allowed, it would raise additional questions concerning the distribution of damages, whether the damages belong to the wife alone or to the husband and wife jointly, whether the actions should be joined, and whether other members of the injured person's family should also be given a cause of action for loss of companionship, society, affection, and the like. The courts that allow recovery, on the other hand, point out that since the law denying the wife the right of recovery for loss of consortium was judge-made, it can be...

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