Helmstetler v. Duke Power Co.
| Decision Date | 03 January 1945 |
| Docket Number | 667 |
| Parties | HELMSTETLER v. DUKE POWER CO. |
| Court | North Carolina Supreme Court |
Civil action by husband to recover damages alleged to have been sustained by him through a negligent injury to his wife.
Plaintiff alleges that in consequence of defendant's negligence which caused serious and permanent injuries to his wife, Irma Helmstetler, when her automobile collided with defendant's bus in the City of Winston-Salem on February
2, 1944, he has 'nursed her, looked after and cared for her * * * and he is advised * * * he will have to continue to nurse and care for her as long as she lives'; that he has been required to give up his own work and 'to take over and carry on her business as a florist which she operated prior to her said injuries'; that he has endured 'physical pain and mental anguish in being forced to observe his wife's sufferings'; and that he has lost 'the companionship and consortium of his wife and has partly been deprived of her society, services, aid and comfort.' It is further alleged that plaintiff and his wife have been married and have lived together for many years and have enjoyed reasonably good health until the injuries of which he now complains.
The defendant filed answer, denied the allegations of negligence and pleaded the wife's contributory fault and that she has since secured judgment for all damages, sustained by her at the June Term, 1944, which judgment has been paid.
When the instant case was called for trial, the defendant interposed a demurrer ore tenus to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, maintainable by the plaintiff in his own right.
From judgment sustaining the demurrer and dismissing the action, the plaintiff appeals, assigning errors.
Don A. Walser, of Lexington, for appellant.
Womble, Carlyle, Martin & Sandridge, of Winston-Salem, and Phillips & Bower, of Lexington, for appellee.
When a married woman is negligently injured by the tort of another, can her husband maintain an action to recover damages sustained by him through (1) imposed nursing and care, (2) loss of his wife's services, (3) mental anguish, and (4) loss of consortium?
The earlier decisions, grounded on the common law, would answer in the affirmative. Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 34 L.R.A. 803, 56 Am.St.Rep. 672; Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778, 7 L.R.A.,N.S., 545; May v. Western Union Tel. Co., 157 N.C. 416, 72 S.E. 1059, 37 L.R.A.,N.S., 912; Bailey v. Long, 172 N.C. 661, 90 S.E. 809, L.R.A. 1917B, 708; Anno. 21 A.L.R. 1517; Anno. 133 A.L.R. 1156; 27 Am.Jur. 100 et seq.; 41 C.J.S., Husband and Wife, s 401, p. 897 et seq.
In 1913, however, the General Assembly adopted the Married Women's Act, G.S. s 52-10, which provides that the earnings of a married woman by virtue of any contract for her personal services, and any damages for personal injuries, or other tort sustained by her, can be recovered by her suing alone, and such earnings or recovery shall be her sole and separate property as fully as if she had remained unmarried.
To what extent this statute has abridged the husband's common-law right of action to recover damages sustained by him through injuries negligently inflicted on his wife has not heretofore been considered, except obliquely perhaps in the cases of Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889, and McDaniel v. Trent Mills, 197 N.C. 342, 148 S.E. 440, where, in each case, the wife was seeking to recover damages sustained by her through injuries negligently inflicted on her husband. Anno. 5 A.L.R. 1049; 13 A.L.R. 1333; 18 A.L.R. 882; 37 A.L.R. 897; 59 A.L.R. 680; 27 Am.Jur. 113.
Nor are we presently concerned with an action where the alleged tort consists in the wrongful destruction or impairment of consortium, intentionally inflicted, such as alienation of affections, crim. con., assault and battery against the wife, malicious prosecution or defamation of her character. 27 Am.Jur. 99 and 107.
Similar legislation in other jurisdictions has resulted in divergent views as to its effect. Some courts hold that the husband's common-law right of action per quod consortium amisit is not destroyed by the Married Women's Act, and that he may still recover, at least, for certain elements of damage. 27 Am.Jur. 101. Other courts hold that under this legislation a husband can no longer recover for loss of consortium sustained by him through a negligent injury to his wife. Anno. 21 A.L.R. 1527; 151 A.L.R. 479.
This then brings us to a consideration of the scope and effect of the Married Women's Act of 1913. It should be read in the light of Art. X, Sec. 6, of the Constitution which protects a married woman in the sole ownership of her property, and also in connection with the Martin Act of 1911, G.S. s 52-2, which seeks to secure to her the free use of her property. Martin v. Bundy, 212 N.C. 437, 193 S.E. 831. See Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729.
Initially, it will be noted that by the terms of the statute, a married woman is to have the earnings arising from 'any contract for her personal service. ' Patterson v. Franklin, 168 N.C. 75, 84 S.E. 18, 20.
This clearly gives to her any wages earned outside the home, but plaintiff says it would not include services rendered in the house-hold. Price v. Charlotte Electric Co., 160 N.C. 450, 76 S.E. 502. Replying, the defendant says the household duties were included within the husband's common-law right to his wife's earnings, and as this right has now been transferred to the wife, no cause of action exists for the lesser and incidental right. Authorities elsewhere may be cited in support of either view. Anno. 151 A.L.R. 479; 27 Am.Jur. 101-102.
Next, the married woman is given 'any damages for personal injuries or other tort sustained by her '. What are the damages recoverable by her in an action for personal injuries or other tort? These are understood to embrace indemnity for entailed nursing and care, medical expenses, loss of time, loss from inability to pursue avocation or to perform labor, and loss from diminished capacity to earn money. The measure of recovery is reasonable satisfaction for loss of both bodily and mental powers, and for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury. In short, it is such as will make the plaintiff whole or compensate her fully for all injuries sustained by her, past, present and prospective. Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421; Price v. Electric Co., supra. Of course, the present-worth rule would be applicable to any prospective loss. Daughtry v. Cline, 224 N.C. 381, 30 S.E.2d 322.
In Kirkpatrick v. Crutchfield, 178 N.C. 348, 100 S.E. 602, 606, where a married woman was suing in tort for personal injuries, it was said:
It follows, therefore, that a married woman is now...
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...1, 2022). (42.) Restatement (Second) of Torts [section] 693 cmt. g (Am. L. Inst. 1977). (43.) See, e.g., Helmstetler v. Duke Power Co., 32 S.E.2d 611 (N.C. 1945) (abolishing consortium claims in North Carolina); Nicholson v. Hugh Chatham Mem'l Hosp., Inc., 266 S.E.2d 818 (N.C. 1980) (revers......