Hoffman v. Dautel

• Decision Date: 25 January 1964
• Docket Number: No. 43441,43441
• Citation: 388 P.2d 615,192 Kan. 406
• Parties: Donna Irene HOFFMAN, Appellant, v. Jackie E. DAUTEL and Delmar L. Dautel, d/b/a Dautel Brothers, the Home Insurance Company and the Home Indemnity Company of New York, New York, Corporations, Appellees.
• Court: Kansas Supreme Court

Page 615

388 P.2d 615

192 Kan. 406

Donna Irene HOFFMAN, Appellant, v. Jackie E. DAUTEL and Delmar L. Dautel, d/b/a Dautel

Brothers, the Home Insurance Company and the Home

Indemnity Company of New York, New York,

Corporations, Appellees.

No. 43441.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

1. A wife has no cause of action for damages for loss or impairment of consortium resulting from a direct injury to her husband because of the negligent acts of others.

2. The record in an action by a wife to recover damages for loss or impairment of consortium arising out of personal injury sustained by her husband in a truck-automobile accident, caused by the defendants' alleged negligence, is examined on demurrer, and it is held: The possibility of multiple actions based upon a single tort and one physical injury, when there is added the double recovery aspect of such a situation in the absence of some statutory control, is deemed sufficient to hold no cause of action was alleged, and the district court did not err in sustaining a demurrer, lodged against such cause of action.

Sam A. Crow, Topeka, and J. A. Dickinson, Ralph E. Skoog and Bill G. Honeyman, Topeka, on the brief, for appellant.

John A. Bausch, Topeka, and L. M. Ascough and J. H. Eschmann, Topeka, on the brief, for appellees.

SCHROEDER, Justice.

This is a negligence action by the plaintiff against multiple defendants to recover damages arising out of an automobile collision. The plaintiff seeks to recover damages for personal injuries to herself and for the loss of consortium, society and companionship which she alleges were sustained by her because of direct injuries to her husband in the same collision. The plaintiff alleges these injuries were caused by the negligence of the defendants.

The question presented by this appeal is whether a wife can recover damages for loss of consortium resulting from a direct injury to her husband because of the negligent acts of others.

The appeal in this case grows out of the same set of facts reported in Hoffman v. Dautel, 190 Kan. 131, 373 P.2d 191. There the court held an order overruling a motion to strike paragraph XVIII from the petition was not appealable.

Upon remand of the case to the lower court, paragraph XVIII was attacked by a demurrer on the ground it failed to allege facts sufficient to state a cause of action against the defendants for loss of consortium due to the injuries to plaintiff's husband. The demurrer was sustained and the plaintiff has duly perfected an appeal.

The appellant's husband was the driver of the automobile in which she was riding, and she brings this action for her personal injuries as a result of the accident. She joins in her cause of action for personal injuries her right to recover for the negligent impairment of her consortium with her husband. In the same petition she alleges what is denominated a second cause of action pursuant to G.S.1949, 23-205, not a subject of this appeal. The second cause of action is brought in her name for the benefit of her husband based on the loss or impairment of her ability to perform domestic services.

Three minor children of the appellant were riding in the automobile with them when the collision occurred on June 9, 1958. The children, through their mother and next friend, brought an action to recover damages for the negligent injuries to their father. On appeal to this court (Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57) it was held the district court did not err in sustaining the defendants' motion to strike allegations of indirect injury and damage to the children, based upon a direct injury to the father. The court held:

'A minor child has no cause of action for damages arising out of the disability of its father, caused by negligence of the defendant, with attendant loss of acts of parental guidance, love, society, companionship and other incidences of the parent-child relationship.' (Syl. p1.)

Paragraph XVIII, here under attack, in the amended petition of the appellant reads:

'That by reason of the concurrent negligence and concurrent carelessness of the defendants, as set out above, the plaintiff's husband, Everett Eugene Hoffman, who was the driver of the automobile, as hereinbefore alleged, was seriously and permanently injured and that as a result of the injuries to plaintiff's husband, she has been and shall be deprived for the remainder of her life of the services, comfort, society, companionship and consortium of a kind, faithful, and loving husband, damaging plaintiff in the sum of $50,000.00.' G.S.1949, 23-205 provides:

'That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based upon the loss or impairment of her ability to perform services in the household and in the discharge of her domestic duties, shall be for the benefit of her husband so far as he shall be entitled thereto: Provided, however, That nothing herein shall in any way affect the right of the husband to recover damages for the wrongful death of his wife.'

The foregoing statute is specifically limited by its provisions. It requires that a wife bring the cause of action in her name for the benefit of her husband based on the loss or impairment of her ability to perform domestic services. In Clark v. Southwestern Greyhound Lines, 144 Kan. 344, 58 P.2d 1128, the husband was denied the right to sue in his own name for the loss of his wife's services and companionship. The court held no distinction can be drawn between 'services' and 'companionship' because the terms 'services' and 'domestic duties' include companionship, and the wife is by statute the sole person who may bring such an action for the benefit of her husband.

It has been held proper for a married woman to frame her petition in two causes of action, when she brings an action for damages for her personal injuries caused by the negligence of a third party, and also to recover damage resulting to her husband from the same negligence, as authorized by 23-205, supra. (White v. Toombs, 162 Kan. 585, 178 P.2d 206.)

The appellant argues that if by statute a wife must alone bring such a cause of action, she may certainly bring a cause of action when her husband has been negligently injured, and she alleges damages resulting from injury and loss to her by reason of her husband's injuries and uselessness.

The appellant relies upon the dictum in the Clark case, supra, 144 Kan. at page 347, 58 P.2d at page 1130, to the effect that the husband owes the wife the same duties as does the wife owe the husband.

With the exception of a North Carolina decision (Hipp v. Dupont [1921] 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873), subsequently overruled (Hinnant v. Tidewater Power Co. [1924] 187 N.C. 288, 121 S.E. 307, 37 A.L.R. 889), the right of the wife to recover for loss of consortium caused by negligent injury to her husband was not recognized until 1950, when the case of Hitaffer v. Argonne Co. [1950] 87 U.S.App.D.C. 57, 183 F.2d 811, cert. den. 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, 23 A.L.R.2d 1366, held she was entitled to relief. (Hitaffer was subsequently overruled on other points--Smither and Company, Inc. v. Coles [1957] 100 U.S.App.D.C. 68, 242 F.2d 220.) Decisions following the lead in the Hitaffer case are: Hoekstra v. Helgeland [1959] 78 S.D. 82, 98 N.W.2d 669; Brown v. Ga.-Tenn. Coaches, Inc. [1953] 88 Ga.App. 519, 77 S.E.2d 24; Dini v. Naiditch [1960] 20 Ill.2d 406, 170 N.E.2d 881; Montgomery v. Stephan [1960] 359 Mich. 33, 101 N.W.2d 227; Yonner v. Adams [1961] 53 Del. 229, 167 A.2d 717; Mo. Pac. Trans. Co. v. Miller [1957] 227 Ark. 351, 299 S.W.2d 41; Novak v. Kansas City Transit, Inc. [Mo.1963] 365 S.W.2d 539; Ellis v. Fallert et al. [1957] 209 Or. 406, 307 P.2d 283; Cooney v. Moomaw [D.Neb.1953] 109 F.Supp. 448; and Duffy v. Lipsman-Fulkerson & Co. [D.Mont.1961] 200 F.Supp. 71.

Most courts, however, which have considered the question since 1950 have followed the majority rule and have refused to permit the wife to maintain an action of this type. Within the past few years the following courts have considered the question and denied recovery: State Farm Mutual Auto. Ins. Co. v. Village of Isle [1963] 265 Minn. 360, 122 N.W.2d 36; Baird v. Cincinnati, New Orleans & Texas Pacific R. Co. [Ky.1963] 368 S.W.2d 172; Miller v. Sparks [Ind.App.1963] 189 N.E.2d 720; Wilson v. Redding [Fla.App.1962] 145 So.2d 252; Seagraves v. Legg [W.Va.1962] 127 S.E.2d 605; Page v. Winter [1962] 240 S.C. 516, 126 S.E.2d 570; and Deshotel v. Atchison, T. & S. F. Ry. Co. [1958] 50 Cal.2d 664, 328 P.2d 449.

The decisions on the subject prior to 1952 are accumulated in 23 A.L.R.2d 1378 under an annotation entitled 'Wife's right of action for loss of consortium.' Other American decisions on the question since 1952 denying the wife's recovery are: Franzen v. Zimmerman [1953] 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell [Fla.1952] 61 So.2d 420; Coastal Tank Lines, Inc. v. Canoles [1955] 207 Md. 37, 113 A.2d 82; Hartman v. Cold Spring Granite Co. [1956] 247 Minn. 515, 77 N.W.2d 651; Larocca v. American Chain & Cable Co., Inc. [App.Div.1952] 23 N.J.Super. 195, 92 A.2d 811; Don v. Benjamin M. Knapp, Inc. [1953] 281 App.Div. 892, 119 N.Y.S.2d 801, aff'd. 306 N.Y. 675, 117 N.E.2d 128; Garrett v. Reno Oil Company [Tex.Civ.App.1954] 271 S.W.2d 764; Nickel v. Hardware Mut. Casualty Co. [1955] 269 Wis. 647, 70 N.W.2d 205; Ash v. S. S. Mullen, Inc. [1953] 43 Wash.2d 345, 261 P.2d 118; Fragnoli v. Israel [1959] 20 Misc.2d 436, 190 N.Y.S.2d 1; La Eace v. Cincinnati, Newport & Covington Ry. Co., Inc. [Ky.1952] 249 S.W.2d 534; and Kronenbitter v. Washburn Wire Co. [1958] 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898.

Federal Circuit Court decisions following various...