Howard v. Cooperative

• Decision Date: 21 June 1949
• Docket Number: Case Number: 33349
• Citation: 201 Okla. 504,1949 OK 139,207 P.2d 784
• Parties: HOWARD v. VERDIGRIS VALLEY ELEC. COOP.
• Court: Oklahoma Supreme Court

1949 OK 139

207 P.2d 784

201 Okla. 504

HOWARD v. VERDIGRIS VALLEY ELEC. COOP.

Case Number: 33349

Supreme Court of Oklahoma

Decided: June 21, 1949

Syllabus

¶0 HUSBAND AND WIFE - Statutes held not to give cause of action to wife for damages on account of injuries to husband by third party.

The statutes of this state do not give a cause of action to a wife to recover compensation in damages for loss sustained by her on account of personal injuries to her husband, occasioned by the negligence of a third party.

Appeal from District Court, Tulsa County; Horace D. Ballaine, Judge.

Action by Ada Lee Howard against the Verdigris Valley Electric Co-Operative, Inc., to recover damages alleged to have resulted to her by reason of injuries to her husband. A demurrer to plaintiff's petition was sustained, and she appeals. Affirmed.

Harry Seaton, Milton W. Hardy, and Summers Hardy, all of Tulsa, for plaintiff in error.

Hemry & Hemry, of Oklahoma City, and Shaw & Harris, of Bartlesville, for defendant in error.

CORN, J.

¶1 Presented herein is a matter of first impression in this jurisdiction, involving the question whether a wife can recover damages for accidental injuries to her husband. Although the question has been the subject of extensive litigation, the courts, with but few exceptions, are in complete agreement as to the law applicable to such situations.

¶2 Plaintiff's husband was totally and permanently disabled as the result of an accidental injury received during the course of employment with defendant. By reason of his disability plaintiff has been deprived of his assistance, support, aid and consortium, and his condition remains such that she will be required to administer to him for the remainder of his natural life.

¶3 Her amended petition alleged that his injury resulted from defendant's negligence; that she had been deprived of his support, aid, assistance and consortium; that she was capable of earning $100 per month, but because of the burden imposed upon her she has been deprived of such earnings, and also has suffered physical, mental and nervous strain from the necessary duties imposed upon her by defendant's negligence. The damages for which plaintiff sought recovery of $80,200 may be summarized as follows:

(1) Loss of support, maintenance and the benefits of one-half of her husband's earning capacity for the period of his life expectancy, amounting to $27,600.

(2) Loss of her separate earnings for the same period and amount.

(3) Loss of normal support, assistance, comfort, compensation, aid, association and consortium of her husband.

(4) Her own suffering, physical, mental and nervous strain and pain arising by reason of the continuous necessity of caring for her husband, all caused by defendant's negligence.

¶4 Defendant's demurrer to the petition was sustained upon the ground plaintiff had no right of action in her own name to recover for injuries alleged to have resulted from defendant's negligent injury of the husband.

¶5 Plaintiff contends the trial court erred in sustaining the demurrer and rendering judgment for defendant. The argument for reversal is based upon the proposition that in this state a wife has a cause of action, created by statute, for damages resulting from negligent injury of her husband by another.

¶6 Plaintiff recognizes the general rule is that no right of action exists in the wife for damages in such cases, unless such right is specifically conferred by statute. Restatement of the Law of Torts, sections 693-695; 41 C.J.S., Husband & Wife, § 404; 27 Am. Jur., Husband & Wife, §§ 513-514. (See cases cited in footnotes.) In the last-cited text it is stated:

"Section 513. At common law a wife has no cause of action for loss of consortium of the husband, whatever the rights of her husband may be . . . Generally, a wife may maintain such a suit for any interference by an outsider with any marital duty that her husband owes her, where such interference is intentional and legally malicious, since, in such a case, there is clearly a violation of a right which she has against the world. The cases in which her right of action is most commonly sustained are those for alienation of affections of her husband and for criminal conversation, and closely akin thereto is her cause of action, sometimes recognized, for wilful acts directed against her husband and causing her loss of his consortium."

"Section 514. Whatever right a wife may have, by virtue of statutes removing her common-law disabilities to recover for loss of consortium of her husband as a result of injuries inflicted by a third person, does not extend to loss of consortium caused by a mere negligent injury inflicted upon the husband. At least, in the absence of any statute expressly conferring it, a wife, even though able to sue and be sued as a feme sole, has no right or cause of action, as a general rule, for loss of consortium due to injuries inflicted on her husband. She has no such cause of action even under a statute preserving to her all rights of action growing out of violation of her personal rights. Her loss of consortium resulting from negligence is too remote and indirect to permit her to recover therefor, and hence, it is distinguishable from loss of consortium resulting directly from a wrongful act, as where her husband is wrongfully enticed, seduced, or forced away from her. . . ."

¶7 But, plaintiff urges that such right of action can be conferred by statute, and that applicable statutes in this state do establish such an exception. Plaintiff relies upon the following provisions of our statutes as having abrogated the common-law rule, denying a wife the right of action in such cases:

¶8 32 O.S. 1941 § 3, providing that the husband must support the wife, but when unable to do so by reason of infirmity, then the wife must support him out of her separate property.

¶9 32 O.S. 1941 § 15:

"Woman shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injury sustained to her reputation, person, property, character or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone: Provided, that this chapter shall not confer upon the wife a right to vote or hold office, except as is otherwise provided by law. R. L. 1910, § 3363."

¶10 76 O.S. 1941 § 6:

"Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations."

¶11 76 O.S. 1941 § 8:

"The rights of personal relation forbid: 1. The abduction of a husband from his wife or of a parent from his child. 2. The abduction or enticement of a wife from her husband, of a child from a parent, or from a guardian entitled to its custody, or of a servant from his master. 3. The seduction of a wife, daughter, orphan sister or servant; and, 4. An injury to a servant, which affects his liability to serve his master."

¶12 76 O.S. 1941 § 9:

"Any necessary force may be used to protect from wrongful injury the person or property of one's self, or of a wife, husband, child, parent or other relative, or member of one's family, or of a ward, servant, master or guest."

¶13 We are called upon to determine whether the above-quoted provisions of our statutes provide an exception to the common-law rule, so that they may be said to now confer upon the wife a cause of action in such cases. Thus it is unnecessary to consider the many decisions from the other states which adhere to the general rule. Attention is directed to Sheard v. Oregon Elec. Ry. Co., 137 Ore. 341, 2 P.2d 916; Giggey v. Gallagher Tran. Co., 101 Colo. 258, 72 P.2d 1100; Dupe v. Hunsberger (Pa. 1946) 58 Dist. & C. 438; Tyler v. Brown-Service Funeral Homes Co., 250 Ala. 295, 34 So.2d 203; Helmstetler v. Duke Power Co. (1945) 224 N.C. 821, 32 S.E.2d 611, as most recently expressive of the general rule. We...