Kosciolek v. Portland Ry., Light & Power Co.

• Decision Date: 10 October 1916
• Parties: KOSCIOLEK v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

160 P. 132

81 Or. 517

KOSCIOLEK v. PORTLAND RY., LIGHT & POWER CO.

Supreme Court of Oregon

October 10, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Katherine Kosciolek against the Portland Railway, Light &amp Power Company. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

The plaintiff, widow of John Kosciolek, complains that the defendant negligently ran one of its street cars against a wagon being driven on a street in Portland by her husband whereby without his fault he was injured so that he died about 13 months later. She says that:

"By reason of the matters and things herein alleged this plaintiff has been, now is, and will hereafter be deprived of the comfort, society, love, affection, association companionship, and support of the said John Kosciolek; that prior to said injuries the said John Kosciolek was a kind affectionate, and devoted husband and father, but after receiving such injuries he became nervous, cross, irritable, sick, and childish and was so up to the time of his death; that such condition arose shortly after his injury, and was of a permanent and progressive character, and existed at the time of his death;" and "that by reason of the matters and things herein set forth, this plaintiff has been injured to her damage in the sum of $20,000."

The defendant denied everything in the complaint except its own corporate existence and that it was operating a street car system in Portland. It charges that the decedent was guilty of contributory negligence, in that he drove his team upon the track directly in front of the defendant's car so suddenly that it was impossible to avoid a collision. Another defense was that the decedent himself during his lifetime sued this defendant for damages for the same injuries growing out of the identical accident described in plaintiff's complaint, and that after issue joined and the action was ready for trial, this defendant, as a compromise thereof, paid to the said John Kosciolek, in full satisfaction of all claims and demands on account of said accident, the sum of $850, in consideration of which Kosciolek executed and delivered to defendant a release on behalf of himself, his heirs, executors, and administrators, forever discharging the defendant, its successors, and assigns from all liability by reason of the injury and from all claims or causes of action on account thereof. The first defense is traversed by the reply. As to the release the reply admits the institution of the action between the plaintiff's husband and the defendant and the execution of the acquittance. It is not denied that the defendant paid to Kosciolek the sum of money mentioned in the answer as a compromise of the action. In brief the contention of the reply is that the injuries mentioned in the release were not those of which the plaintiff here complains. It was also urged in the reply that the effect of the release was an admission on the part of the defendant of its liability for all injuries growing out of the negligence of the defendant in the instance described. A jury trial resulted in a verdict for the defendant, and the plaintiff appealed.

I. N. Smith, of Portland (E. V. Littlefield, of Portland, on the brief), for appellant. Frank J. Lonergan, of Portland (Griffith, Leiter & Allen, of Portland, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

Many questions are suggested in the plaintiff's brief which are unnecessary to consider. The whole question hinges upon the determination of whether or not a widow can maintain an action for loss of consortium incident to the marriage relation between herself and her deceased husband. It may be set down that at common law, while the husband could maintain an action for an injury to or death of the wife whereby he lost her services and consortium, yet the wife herself could not maintain a corresponding action to recover for the loss of services and consortium due from the husband to herself. The position of the plaintiff, however, is that since the enactment of section 7050, L. O. L., a wife has rights and remedies equivalent in all respects to those with which the husband is endowed. That statute reads thus:

"All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed; provided, that this act shall not confer the right to vote or hold office upon the wife, except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has."

This section does not confer upon the wife any new right of...