Kelley v. New York, N.H. & H.R. Co.
| Decision Date | 19 May 1897 |
| Citation | 46 N.E. 1063,168 Mass. 308 |
| Parties | KELLEY v. NEW YORK, N.H. & H.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.E. Cotter, for plaintiff.
Benton & Choat, for defendant.
In Bigaouette v. Paulet, 134 Mass. 123, a husband's action for loss of consortium with his wife was held to be maintainable, although there was no loss of service or payment of expenses in consequence thereof. And in Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17, it is said that the basis of the husband's action for loss of consortium is his right to the conjugal society of his wife and that it is not necessary that there should be proof of any pecuniary loss, or loss of service. The present case was tried with an action brought by the plaintiff's wife, and the same jury fixed the damages in both cases. The defendant took exceptions in this case, but none in the action brought by her. The jury were instructed that the division of the rights to recover which by law is made between the husband and the wife does not, in any sense, increase the aggregate right of recovery, and that the damages which are to be divided between the husband and the wife should not, in the aggregate, exceed the damages which the wife, if unmarried would be entitled to recover; with the qualification however, that one additional element should be considered namely, the loss of consortium by the husband. The defendant contends that now an action will not lie for loss of consortium, or, at least, that it will not in case of an injury to her through negligence, and that the incurring of expenses will not alone give a ground of action. It might be sufficient, to dispose of this case, to say that the plaintiff was bound to support his wife, and that the expenses incurred by him appear to have exceeded the amount of the verdict, and that, therefore, the defendant's exceptions should be overruled; but, in view of the ruling at the trial allowing the jury to take into account the plaintiff's loss of consortium, and of the defendant's request that the correctness of this ruling should be determined, we proceed to consider it. By the common law it is quite clear that a husband might maintain an action in his own name alone for an injury to his wife which resulted in his loss of consortium with her; as, for example, for an injury caused by an assault and battery upon her, by medical or surgical malpractice, or by other negligence. Hyde v. Scyssor, Cro.Jac. 538; Guy v. Lusy, 2 Rolle, 51; Russell v. Come, 2 Ld.Raym. 1031; Dix v. Brooks, 1 Strange, 61; Smith v. Hixon, 2 Strange, 977; 2 Rolle, Abr. 556; Hale, Anal. 40; 3 Bl.Comm. 140; 1 Chit.Pl. 83; Yelv. (Met.Ed.) 89; Baker v. Bolton, 1 Camp. 493; Carey v. Railroad Co., 1 Cush. 475, 478; Barnes v. Hurd, 11 Mass. 59; Laughlin v. Eaton, 54 Me. 156; Hopkins v. Railroad Co., 36 N.H. 9, 14; Lewis v. Babcock, 18 Johns. 443; Matteson v. Railroad Co., 35 N.Y. 487; Jones v. Railroad Co., 40 Hun, 349 (); Berger v. Jacobs, 21 Mich. 215; Hyatt v. Adams, 16 Mich. 180; Long v. Morrison, 14 Ind. 595; Nixon v. Ludlam, 50 Ill.App. 273; Mewhirter v. Hatten, 42 Iowa, 288; Mowry v. Chaney, 43 Iowa, 609; Smith v. City of St. Joseph, 55 Mo. 456. The contention of the defendant, therefore, must rest entirely on the ground that the husband has lost this right of consortium by reason of the legislation of this commonwealth increasing the rights of married women. Harmon v. Railroad Co., 165 Mass. 100, 42 NE. 505. But there has been no substantial change in the statutes upon this subject since the decision in Bigaouette v. Paulet. Notwithstanding the progress of legislation in giving to married women the control of their time and actions, this right of the husband is not destroyed. The unity and indemnity of interest which by the common law existed between husband and wife have been impaired. Butler v. Ives, 139 Mass. 202, 29...
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