Hinnant v. Tide Water Power Co.

• Decision Date: 31 January 1925
• Docket Number: 286.
• Parties: 189 N.C. 120, 37 A.L.R. 889 v. TIDE WATER POWER CO. HINNANT
• Court: North Carolina Supreme Court

126 S.E. 307

189 N.C. 120, 37 A.L.R. 889

HINNANT v. TIDE WATER POWER CO.

No. 286.

Supreme Court of North Carolina

January 31, 1925

Appeal from Superior Court, New Hanover County; Calvert, Judge.

Action by Florence L. Hinnant against the Tide Water Power Company. Judgment for plaintiff, and defendant appeals. Error.

Wife cannot sue for loss of consortium either at common law or under statute where loss is indirect, remote, or consequential.

Rountree & Carr, of Wilmington, for appellant.

E. K Bryan, of Wilmington, for appellee.

ADAMS J.

The defendant is a corporation operating an electric railroad between the city of Wilmington and Wrightsville Beach. On August 25, 1920, the plaintiff's husband was one of its employees, serving in the capacity of motorman, and at 6:30 forenoon, in a collision of two of the defendant's cars on the trestle between Wrightsville Station and Wrightsville Beach, he suffered personal injuries which resulted in his death at 3 o'clock the next morning. Thereafter his personal representative brought suit against the defendant and recovered a judgment for damages, which has been paid. C S. §§ 160, 3465-3468; 187 N.C. 288, 121 S.E. 540.

While that suit was pending, the plaintiff instituted the present action. She filed a complaint minutely stating the defendant's alleged acts of negligence, the nature of her husband's injuries, the circumstances attending his death, and setting forth her individual grievance as follows:

"By reason of the negligence hereinbefore complained of, which resulted in the death of the plaintiff's husband, W. T. Hinnant, the plaintiff was caused to suffer great and serious nervous shock, seriously and permanently impairing and weakening her nervous system, causing her to suffer great pain and mental anguish over the loss of a devoted and true husband, and seeing him broken, mashed, and bruised and suffering, and causing the plaintiff to have to devote her entire time in nursing, caring for, supporting, looking after, and administering to her three children, and causing her to have to maintain herself and family, as the said W. T. Hinnant had no personal estate, and depriving the plaintiff of her husband's support and maintenance of herself and family, and of his society, love, and affection, his counsel and advice, his tender ministration in sickness, and the many comforts and pleasures which the marital relationship brings to those who are congenial with each other, to the great damage and injury of the plaintiff," etc.

After the collision, her husband was taken to the James Walker Hospital in Wilmington for treatment. She saw him there about midday, late in the afternoon, and again at 9 o'clock in the evening. She described his condition, her sensation, and the circumstances under which she was admitted to the hospital. Other witnesses also were examined.

Several exceptions were entered of record, but for the present purpose it is necessary to consider only one. On the question of damages the presiding judge instructed the jury as follows:

"You will allow only such amount, if any, as you may find from the evidence and by the greater weight of it will be fair compensation for mental anguish and for loss of consortium, that is, the society and companionship of her husband, which she may have suffered from the time of the injury to the time of his death."

The defendant excepted, not only to this instruction, but to the refusal of the court to tell the jury that the plaintiff was not entitled to damages for mental anguish or loss of consortium. The appeal presents the question whether these exceptions should have been sustained.

In Baker v. Bolton, 1 Camp. 493, Lord Ellenborough said:

"In a civil court, the death of a human being could not be complained of as an injury."

Whatever the foundation on which this rule is made to rest--whether on the ground that a personal right of action dies with the person, or that the value of a human life may not become the subject of judicial computation, or that the relation of the parties is terminated by death--it is true, as stated in Insurance Company v. Brame, 95 U.S. 754, 24 L.Ed. 580:

"The authorities are so numerous and so uniform to the proposition that by the common law no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question. It has been decided in many cases in the English courts and in many of the state courts, and no deliberate, well-considered decision to the contrary is to be found." Hilliard on Torts, 87, § 10; Hatch v. Railway Co., 183 N.C. 617, 112 S.E. 529; Mitchell v. Talley, 182 N.C. 683, 109 S.E. 882; Hood v. Telegraph Co., 162 N.C. 70, 77 S.E. 1096; Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216, 42 L. R. A. (N. S.) 725; Bolick v. Railroad, 138 N.C. 370, 50 S.E. 689; Killian v. Railroad, 128 N.C. 261, 38 S.E. 873.

In accordance with this principle it has been held that a widow has no individual right of action for the wrongful death of her husband and that a father has none for the wrongful death of his son. Howell v. Comm'rs, 121 N.C. 363, 28 S.E. 362; Killian v. Railroad, supra; Hope v. Peterson, 172 N.C. 869, 90 S.E. 141. But the doctrine that no civil action could be maintained at common law for causing the death of a human being does not imply that the act which causes the death may not, under some circumstances, give a right of action. It may; but it must be a right not springing from the death itself, as, for example, a suit by an employer or by a father against a wrongdoer who deprives the former of his employee's services and the latter of his son's. "Now the same act," said Judge Cooley, "which deprives a master of the services of his laborer, or a father of those of his child, may result in the death of the servant or child. In these cases the common law gave a remedy for the loss, but only for the time intermediate the injury and the death." 1 Cooley on Torts, 547. Of course, under Lord Campbell's Act and statutes enacted in pursuance thereof the common law has been modified. Our statute provides that, when the death of a person is caused by the wrongful act, neglect, or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and the personal representative of such person, and the successors of such corporation, shall be liable to an action for damages. C. S. § 160. It is by virtue of this provision that the administrator of the plaintiff's husband recovered damages for the intestate's wrongful death.

But this action is prosecuted by the plaintiff in her alleged individual right, and involves the clear-cut question whether by reason of the injury inflicted upon her husband she is entitled to damages for loss of consortium or mental anguish suffered by her during the period intermediate the injury and the death.

First as to consortium: With respect to relative rights under the old English law injuries that might be offered to a person considered as a husband, were abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. In the first two instances the wrongful act destroyed the foundation of the marriage relation, and included a direct and primary injury to the husband for which he had a cause of action. 3 Bl. 139. So in part as to the wife under modern conditions. Whatever her former status may have been, the doctrine of marital equality now clothes her substantially with similar relative rights, from which it follows that for a direct and intentional invasion of the right of consortium, such as criminal conversation, alienation of affections, or the inhibited sale of narcotic drugs, an action now lies in favor of the husband or the wife. Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 34 L. R. A. 803, 56 Am. St. Rep. 672; Brown v. Brown, 124 N.C. 19, 32 S.E. 320, 70 Am. St. Rep. 574; Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769.

In reference to the third class of injuries Blackstone says:

"The third injury is that of beating a man's wife, or otherwise ill using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly; but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill usage, per quod consortium amisit; in which he shall recover a satisfaction in damages."

This "separate remedy" for the wife's ill usage, per quod consortium amisit, was the means by which the husband sought to recover damages for the loss of consortium arising from personal injury wrongfully inflicted on the wife. In its original application the term "consortium" was not confined to society, companionship, and conjugal affection. Service was a prominent, if not the predominant, factor; not so much the service which resulted in the performance of labor or the earning of wages as those which contributed aid and assistance in all the relations of domestic life. In Marri v. Railroad, 84 Conn. 9, 78 A. 582, 33 L. R. A. (N. S.) 1042, Ann. Cas. 1912B, 1120, in which there is a clear and comprehensive discussion of the question, it is said:

"The law's conception of the claim which the husband had upon the wife, and of his right growing out of the marital relation which entered into the meaning of the word consortium to express that right as the subject of invasion by

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