Hipp v. E. I. Dupont De Nemours &. Co, (No. 441.)

Docket Nº(No. 441.)
Citation108 S.E. 318
Case DateSeptember 14, 1921
CourtUnited States State Supreme Court of North Carolina

108 S.E. 318

HIPP.
v.
E. I. DUPONT DE NEMOURS &.
CO. et al.

(No. 441.)

Supreme Court of North Carolina.

Sept. 14, 1921.


Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by Mrs. W. B. Hipp against the E. I. Dupont de Nemours & Co. and another. From judgment overruling demurrer to the complaint, defendants appeal. Affirmed.

The plaintiff, who is the wife of W. B. Hipp, brings this action alleging that her husband, while working as an employee of the defendant company in Hopewell, Va., was, "seriously, painfully, and permanently injured as a proximate result of the carelessness and negligence of the defendants, " setting out the manner in which he was injured and the extent of such injuries and the expense, and that, under the law of Virginia, which is set out, the plaintiff was entitled, as a married woman, to sue and be sued as if she were unmarried, and to own and control her property as fully as if she had remained single, and that neither she nor her husband have received anything whatever from the defendants in the way of damages for the serious injuries inflicted on him; and that her husband brought action in Virginia, but, notwithstanding three separate jury verdicts afforded him, the Court of Appeals of that state rendered judgment against him upon demurrer to the evidence; that the plaintiff is entitled notwithstanding to recover in this jurisdiction, she hating obtained service upon the defendants, for the personal injuries inflicted on her by the injury to her husband. The defendants demur upon the ground that it appears upon the face of the complaint that judgment has been rendered in Virginia, that her husband was not entitled to recover, and that it appears inferentially therefore that under the law of the state of Virginia she has no action for the loss of her husband's company, for damages to her consequent upon injury sustained by him, caused by the negligence of a third person, where the husband's right of action, if any, is barred. The judge overruled the demurrer, and the defendants appealed.

W. S. Beam and C. A. Cochran, both of Charlotte, and V. S. Thomas, of Wilmington, Del., for appellant Dupont de Nemours & Co.

Clarkson, Taliaferro & Clarkson, of Charlotte, for appellant Stillwell.

John M. Robinson and Hamilton C. Jones, both of Charlotte, for appellee.

CLARK, C. J. [1] The demurrer admits all facts sufficiently pleaded, and therefore we must take it that the plaintiff's husband was "seriously, painfully, and permanently injured as the proximate result of the carelessness and negligence of the. defendants, " and that by reason thereof the plaintiff has suffered shock, which has impaired her nervous system, impaired and permanently injured and weakened her physical and mental condition, and that she has suffered greatly from loss of sleep, worry, and anxiety on account of the condition of her husband; in watching over and caring for him, causing her to devote her entire time to nursing and caring for him, while at the same time the burden of maintaining the family fell upon her, entailing heavy cost and expense, and that she has been forced to pay out large sums of money to hospitals, doctors, nurses, and medical expenses, and that by reason of

[108 S.E. 319]

said injuries she has been deprived of the support and maintenance which her husband would have given her, and has suffered mental anguish by being forced to witness the suffering endured by her husband, whereby her own nerves and health have been seriously and permanently shocked, weakened, and impaired; and that by reason of the physical and mental condition of her husband she still continues to suffer in mind and body, and has been denied the care, protection, consideration, companionship, aid, and society of her said husband, and the pleasure and assistance of her husband in escorting her to visit friends and relatives, and has been required to remain at home for long periods of time, denying herself to friends and relatives, and besides has had entailed upon her the fatigue of nursing and caring for him, and incurred expenses, and has paid large sums on that account. These matters are set out more at length in the complaint, but this is a summary of the grounds of her action—all of which allegations of facts are admitted as pleaded by the demurrer. The demurrer in effect presents two questions of law upon these facts:

(1) The first is that the judgment against her husband in Virginia (Dupont v. Hipp, 123 Va. 49, 96 S. E. 280) bars any right of action which she might have for damages for grief, mental anguish, labor, and expense devolving upon her by the disability of her husband and the loss and comfort of his society.

(2) The second is that upon the facts admitted the wife is not entitled to maintain this action.

As to the first ground of demurrer, if the wife has a cause of action we do not think the demurrer can be sustained. She was not a party to the action brought by her husband, and she is not estopped by the judgment as to any relief she might be entitled to. It may be that upon the trial of this action an entirely different state of facts as to the manner in which the husband was injured might be developed, either by additional evidence or by the estimate placed upon the evidence by the jury. She was neither a party nor a privy to that action.

In Laskowski v. People's Ice Co., 203 Mich. 186, 168 N. W. 940, 2 A. L. R. 586, it was held that—

"A judgment in favor of a wife in an action to recover damages for injuries to her person is not conclusive upon the question of defendant's negligence, and absence of her contributory negligence, in an action by her husband for the damages resulting to him from such injuries."

Of course the reverse must be true, since, as held in that case, under the Married Woman's Act, he was not a necessary or proper party to the action by his wife to recover damages for injuries to her person, and was not, in fact, a party. See notes to that case (2 A. L. R. 592) citing many cases that nei ther the judgment in such cases nor a settlement by compromise on the part of the wife would affect the husband's right to recover for the damages sustained by him, quoting among others R. R. v. Kinman, 182 Ky. 597, 206 S. W. 880.

But the second ground of demurrer presents an entirely different question. At common law the husband could maintain an action for the injuries sustained by his wife for the same reason that he could maintain an action for injuries to his horse, his slave, or any other property; that is to say, by reason of the fact that the wife was his chattel. This was usually presented in the euphemism that "by reason of the unity of marriage" such actions could be maintained by the husband. But singularly enough this was not correlative, and the wife could not maintain an action for injuries sustained by her husband. The reason is thus frankly stated by Blackstone:

"We may observe that in these relative injuries notice is only taken of the wrong done to the superior of the parties (husband) injured by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior (the wife) by such injuries is totally unregarded. One reason for this may be this: That the inferior hath no kind of property in the company, care or assistance of the superior as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury." 3 Blackstone's Commentaries, 143.

By the married women's provision in the Constitution of 1868, art. 10, § 6, this conception of ownership by the husband whereby upon marriage all the personal property of the wife became the property of the husband, and he became the owner of her realty during his lifetime, was abolished. The courts in this state continued for a long while, notwithstanding, to hold that the husband could recover his wife's earnings and the damages for injuries done her; but by Acts 1913, c. 13, now C. S. § 2513, it was provided that her earnings and damages for torts inflicted upon her were her sole and separate property for which she could sue alone.

It follows therefore that the husband cannot sue to recover his wife's earnings, or damages for torts committed on her, and there is no reason why she can sue for torts or injuries inflicted on her husband. The law has never authorized the wife to maintain such action for torts sustained by the husband. We agree with the learned counsel for the plaintiff that if the husband could maintain an action to recover damages for torts on the wife she should be able to maintain an action on account of torts sustained by the husband. Such right of action, if it existed in favor of the husband, should exist in favor of the wife. It should be in favor of both or neither, but, in view of the Constitution of 1868 and our statute on the subject, we think that such action can-

[108 S.E. 320]

not be maintained by either on account of the injury to the other.

So far as injuries to the husband are concerned and the damages he has sustained, whether the plaintiff recovers or fails to do so the verdict and judgment are conclusive. The wife...

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46 practice notes
  • Novak v. Kansas City Transit, Inc., No. 49233
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1963
    ...fall the greatest grief of this fallacious idea. --------------- 1 Except in Hipp v. E. I. Dupont De Nemours & Co. (1921), 182 N.C. 9, 108 S.E. 318, which was overruled in Hinnant v. Tide Water Power Co. (1925), 189 N.C. 120, 126 S.E. 307, and in an early Ohio case which was overruled in Sm......
  • Ekalo v. Constructive Service Corp. of America, No. A--20
    • United States
    • United States State Supreme Court (New Jersey)
    • December 6, 1965
    ...88 Although these views received some early expressions of support (see Clark, C.J., in Hipp v. E. I. Dupont De Nemours & Co., 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873 (1921), disapproved in Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889 (1925); Bond, C.J., dissen......
  • Dini v. Naiditch, Nos. 35466
    • United States
    • Supreme Court of Illinois
    • September 30, 1960
    ...deflection was a North Carolina decision that was subsequently overruled (Hipp. v. E. I. Dupont de Nemours & Co., 1921, 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873, overruled by Hinnant v. Tidewater Power Co., 1925, 189 N.E. 120, 126 S.E. 307, 37 A.L.R. 889), two dissenting opinions (Landwehr v......
  • Cannon v. Miller, No. 833SC908
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 4, 1984
    ...interference with his right of consortium was explained by Chief Justice Clark [71 N.C.App. 474] in Hipp v. Dupont, 182 N.C. 9, 12-13, 108 S.E. 318, 319 (1921) as At common law the husband could maintain an action for the injuries sustained by his wife for the same reason that he could main......
  • Request a trial to view additional results
46 cases
  • Novak v. Kansas City Transit, Inc., No. 49233
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1963
    ...fall the greatest grief of this fallacious idea. --------------- 1 Except in Hipp v. E. I. Dupont De Nemours & Co. (1921), 182 N.C. 9, 108 S.E. 318, which was overruled in Hinnant v. Tide Water Power Co. (1925), 189 N.C. 120, 126 S.E. 307, and in an early Ohio case which was overruled in Sm......
  • Ekalo v. Constructive Service Corp. of America, No. A--20
    • United States
    • United States State Supreme Court (New Jersey)
    • December 6, 1965
    ...88 Although these views received some early expressions of support (see Clark, C.J., in Hipp v. E. I. Dupont De Nemours & Co., 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873 (1921), disapproved in Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889 (1925); Bond, C.J., dissen......
  • Dini v. Naiditch, Nos. 35466
    • United States
    • Supreme Court of Illinois
    • September 30, 1960
    ...deflection was a North Carolina decision that was subsequently overruled (Hipp. v. E. I. Dupont de Nemours & Co., 1921, 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873, overruled by Hinnant v. Tidewater Power Co., 1925, 189 N.E. 120, 126 S.E. 307, 37 A.L.R. 889), two dissenting opinions (Landwehr v......
  • Cannon v. Miller, No. 833SC908
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 4, 1984
    ...interference with his right of consortium was explained by Chief Justice Clark [71 N.C.App. 474] in Hipp v. Dupont, 182 N.C. 9, 12-13, 108 S.E. 318, 319 (1921) as At common law the husband could maintain an action for the injuries sustained by his wife for the same reason that he could main......
  • Request a trial to view additional results

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