Hoekstra v. Helgeland

• Decision Date: 13 October 1959
• Docket Number: No. 9704,A,Nos. 9704,R,9710,No. 9710,9704,s. 9704
• Citation: 78 S.D. 82,98 N.W.2d 669
• Parties: Christina HOEKSTRA, Plaintiff and Appellant inespondent in, v. Andy HELGELAND, Administrator of the Estate of Stener Helgeland, Deceased, Defendant and Respondent inppellant in.
• Court: South Dakota Supreme Court

Page 669

98 N.W.2d 669

78 S.D. 82

Christina HOEKSTRA, Plaintiff and Appellant in No. 9704, Respondent in No. 9710, v. Andy HELGELAND, Administrator of the Estate of Stener

Helgeland, Deceased, Defendant and Respondent in

No. 9704, Appellant in No. 9710.

Nos. 9704, 9710.

Supreme Court of South Dakota.

Oct. 13, 1959.

Rehearing Denied Nov. 18, 1959.

Mundt & Mundt, Sioux Falls, for plaintiff as appellant in Case No. 9704, and as respondent in Case No. 9710. Woods, Fuller, Shultz & Smith, Sioux Falls, Roscoe A. Frieberg, Beresford, for defendant as respondent in Case No. 9704, and as appellant in Case No. 9710.

BIEGELMEIER, Judge.

Plaintiff brings this action as the surviving wife against the administrator of the estate of Stener Helgeland for damages for loss of consortium of her husband resulting from his injuries and from his death. Plaintiff claims that these injuries and death were caused by the negligence of the defendant's decedent.

The defendant in his answer and by separate motion moved to dismiss plaintiff's action on the following grounds: (1) that the plaintiff failed to state a cause of action upon which relief could be granted; (2) that the complaint failed to state a cause of action upon which relief could be granted except for the period of time between the injury and death of the plaintiff's husband. The trial court denied defendant's motion based upon the first ground and granted the motion based upon the second. This court thereafter granted to both defendant and plaintiff leave to appeal from the respective orders entered by the court.

The question presented by defendant's appeal is whether or not the surviving wife can recover damages for loss of consortium resulting from a negligent injury to her husband because of the negligent acts of another.

SDC 65.0103 provides:

'The evidence of the common law, including the law merchant, is found in the decisions of the tribunals.

'In this state the rules of the common law, including the rules of the law merchant, are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in section 65.0102.'

SDC 65.0102 so far as here apropos provides:

'The will of the sovereign power is expressed: * * *

'(4) By the Constitution of this state;

'(5) By statutes enacted by the Legislature; * * *'

In De Bates v. Searls, 1928, 52 S.D. 603, 219 N.W. 559, 560, after referring to these statutes, we said: 'Therefore the common law * * * must control in the instant case.'

In Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, this court held that the common law was in force in this state, with the exceptions stated in SDC 65.0103.

The court of a state may come to a conclusion as to the common law of that state different from the conclusion of the court of another state; it is the duty of this court to declare the common law from the decisions of the tribunals. SDC 65.0103.

'It is well settled that the common law of a state may differ from that of other states or may even vary from time to time in order to meet the peculiar, and perchance varying, conditions and circumstances of the state.' Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9, 12.

A review of the history and the origin of the common law and the opinions of the courts on the questions presented by these appeals is of interest and will be of assistance in reaching a conclusion.

By primitive law, the only member of the family deemed to be harmed by an unjustifiable disturbance of family relations was the family head. Burdick's Law of Torts, 4th Ed., Sec. 289; 3 Bl.Com. 139. See Moberg v. Scott, 1917, 38 S.D. 422, 161 N.W. 998, L.R.A.1917D, 732, quoting from Flandermeyer v. Cooper, infra. Under this primitive and Blackstone's common law the wife was regarded as a chattel or a servant, who owed her service to her master, her husband, and she could not sue for any injuries sustained by her, as an individual, except by an action in the joint names of the husband and wife, the recovery obtained being vested in the husband, who could discharge the cause of action without her consent, or prevent her suing by refusing to join as a plaintiff. Laughlin v. Eaton, 1866, 54 Me. 156; Burdick, supra, Sec. 291. Similar statements of the historical and legal background appear in the opinions and treatises here cited.

The early common law recognized that a personal injury to a married woman caused by the tort of a third person gave rise to two causes of action, one for her personal pain and suffering, and the other for the expense incurred for her medical attention and nursing and for the husband's consequential loss of her society and services sometimes included in, differentiated from or used with the term consortium; that these actions were for the enforcement of independent rights, injury to the wife not implying injury to the husband. See Milde v. Leigh, 75 N.D. 418, 28 N.W.2d 530, 173 A.L.R. 738; Harper & James, The Law of Torts, Sec. 8.9; 27 Am.Jur., Husband and Wife, Sec. 490 et seq. See Comment, Restatement of the Law of Torts, Sec. 693, note 21 A.L.R. 1519.

The husband's remedy was per quod consortium amisit (whereby he lost the company--of his wife) and not per quod servitium (whereby he lost the service--of his servant). 3 Bl.Com. 140; Black's Law Dictionary; Guevin v. Manchester Street Railway, 1916, 78 N.H. 289, 99 A. 298, L.R.A.1917C, 410; Pollock, The Law of Torts, 10th Ed., p. 237. We find many courts later stressed the servitium-service theory of the wife rather than the consortium-companionship theory, which is a transposition of the above distinction.

The first of such actions recognized at common law were for loss of consortium resulting from intentional injury. Guy v. Livesey, Cro.Jac, 502, 79 Eng.Rep. 428 (1619). There a husband brought an action in his name for trespass and assault and battery 'for that the defendant did assault, beat, and wound the plaintiff; * * * that he assaulted and beat the wife of the plaintiff * * *.'

The following is verbatim from the opinion, the defendant having moved in arrest of judgment, insisting that the plaintiff-husband:

'cannot have an action for the battery of his wife, but ought to join his wife with him in the action; for the damage done to the wife, she ought to have (if she survive her husband); and so the defendant may be twice punished for one and the same battery, if the plaintiff here should recover; for this recovery of the husband shall not bar her of bringing her action, if she survive him * * *.

'But all the Court held, that the action was well brought, for the action is not brought in respect of the harm done to the wife, but it is brought for the particular loss of the husband, for that he lost the company of his wife, which is only a damage and loss to himself, for which he shall have this action, as the master shall have for the loss of his servant's service.'

In footnote (a) to this case it is stated that where a daughter is in such a situation in her father's family as to be considered his servant, the action will lie for debauching, per quod servitium amisit. 3 Bl.Com. 139, 140.

The right of the husband was later extended to allow him to recover for any negligent injuries to the wife whereby he 'lost the comfort and society of (his wife) for a long time, and incurred and became liable to pay great expenses in nursing her, * * * and whereby the plaintiff lost (her) services * * * for a long space of time, and for want of such services was during that time prevented from carrying on the business of a dealer * * *' etc. Brockbank v. The Whitehaven Junction Rly. Co., 7 H. & N. 835, 158 Eng.Rep. 706 (1862); Prosser on Torts, 2d Ed. Sec. 104, note 3; and see Skoglund v. Mpls. St. Ry. Co., 1891, 45 Minn. 330, 47 N.W. 1071, 11 L.R.A. 222, where this right was recognized and distinguished from the husband's right of action for his personal injuries caused by the same negligence. In Marri v. Stamford St. R. Co., 84 Conn. 9, 78 A. 582, 585, 33 L.R.A.,N.S., 1042, the court referred to this as an extension of the common law in these words:

'Since Blackstone's day there has been an extension of the common-law right of a husband to recover for loss of consortium to cases in which the personal injury sustained by the wire was the result of negligence, so that it is generally held that it makes no difference whether the injury is intentionally or negligently inflicted.'

Consortium has been variously defined. Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 2 (1923); 42 Iowa L.Rev. 634; Lippmann, The Breakdown of Consortium, 30 Col.L.Rev. 651 (1930); (these articles are interesting treatments of the subject); Marri v. Stamford, supra, consortium distinguished from services; 41 C.J.S. Husband and Wife Sec. 11; note 21 A.L.R. 1517. We have defined it in Morey v. Keller, S.D.1957, 85 N.W.2d 57, 58 as 'Consortium is a right growing out of the marital relationship. This term includes the right of either spouse to the society, companionship, conjugal affections and assistance of the other. Roberts v. Jacobs, 37 S.D. 27, 156 N.W. 589; Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423. A loss or impairment of any such elements will sustain an action for alienation of affections.' In some cases the difference in definition or changes in meaning may account for the divergence in the opinions of the courts or their apparently different conclusions.

In Prosser, Law of Torts, 2d Ed., Sec. 103, the author reviews the history of consortium as follows:

'The husband's interest in his relation with his wife first received recognition as a matter of her services to him as a servant. Over a period of some centuries it took form as something considerably broader than this, which was given the name of 'consortium.' Consortium was said to be made up of a bundle of legal rights to the alliterative trio of the services, society and sexual intercourse of the wife. To these elements the modern law had added a...