Lombardo v. D. F. Frangioso & Co.

• Decision Date: 18 May 1971
• Citation: 269 N.E.2d 836,359 Mass. 529
• Parties: Anna T. LOMBARDO v. D. F. FRANGIOSO & CO., Inc. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 836

269 N.E.2d 836

359 Mass. 529

Anna T. LOMBARDO v. D. F. FRANGIOSO & CO., Inc. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 1, 1971.

Decided May 18, 1971.

Evan Y. Semerjian, Boston, for plaintiff.

George M. Herlihy, Boston, for defendants.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL REARDON, QUIRICO and BRAUCHER, JJ.

CUTTER, Justice.

The declaration is in two counts, one against each of two defendants. In each count the plaintiff, a wife, alleges that, as a consequence of the negligent conduct of the defendant named in that count, the plaintiff's husband was injured, 'was prevented from performing * * * his occupation and * * * from continuing a normal marriage relationship with the (p)laintiff; and that as a result * * * (the d)efendant negligently interfered with the (p)laintiff's marriage relationship with her husband, whereby the (p)laintiff suffered loss of her husband's services, society, affection, companionship, relations, and consortium, all to her great damage.' A Superior Court judge sustained a demurrer based on the ground that '(n)o cause of action exists for the matter set forth in the * * * declaration.' The plaintiff appealed.

Since Feneff v. New York Cent. & H.R.R.R., 203 Mass. 278, 282, 89 N.E. 436, was decided in 1909, it has been generally accepted as Massachusetts law that neither spouse has any right of recovery for lack of consortium or loss of marital and other services growing out of a defendant's negligent injury to the other spouse. See Bolger v. Boston Elev. Ry., 205 Mass. 420, 421, 91 N.E. 389; Whitcomb v. New York, N.H. & H. R.R., 215 Mass. 440, 442, 102 N.E. 663; Gearing v. Berkson, 223 Mass. 257, 260--261, 111 N.E. 785; Cassidy v. Constantine, 269 Mass. 56, 57--58, 168 N.E. 169; Rodgers v. Boynton, 315 Mass. 279, 281--282, 52 N.E.2d 576; Alden v. Norwood Arena, Inc., 332 Mass. 267, 275--276, 124 N.E.2d 505; Thornton v. First Natl. Stores, Inc., 340 Mass. 222, 226--227, 163 N.E.2d 264; Prosser, Torts (3d ed.) §§ 118, 119, esp. p. 913, fns. 83, 84 and p. 917, fn. 15; Martin and Hennessey, Automobile Law (2d ed.) § 251. We interpret Erickson v. Buckley, 230 Mass. 467, 470--471, 120 N.E. 126, as recognizing at most the liability of a defendant (who had negligently caused injury to a wife) to compensate a husband (bound to support his wife and care for her) for medical and other expense for the wife's care to which the husband had been put by reason of the injury to the wife. For such actual expense a husband may still recover consequential damages. See, however, the Cassidy case, 269 Mass. 56, 57--60, 168 N.E. 169, supra. See also Thibeault v. Poole, 283 Mass. 480, 483--487, 186 N.E. 632; annotation, 21 A.L.R.3d 1113, 1117. ¹

Prior to the Feneff case, it had been indicated or held in Kelley v. New York, N.H. & H.R. R.R., 168 Mass. 308, 311--312, 46 N.E. 1063; Duffee v. Boston Elev. Ry., 191 Mass. 563, 564, 77 N.E. 1036, and Hey v. Prime, 197 Mass. 474, 476, 84 N.E. 141, that a husband could recover for loss of consortium. The Kelley case, however, was expressly overruled in the Feneff case, 203 Mass. 278, 282, 89 N.E. 436. A majority of the court are of opinion that, in Massachusetts under or by extension of the general principles of the Feneff case and the decisions following it (already cited), there may be no recovery, based on negligence, for loss of a spouse's services or for loss of consortium, apart from a husband's right (based upon his duty to support) to reimbursement of medical and closely related expenses incurred for the care of an injured wife. The demurrer was correctly sustained.

We are aware that there is much authority in the United States which differs from the Massachusetts rule. ² We regard our rule, however, as having been well established throughout the more than sixty years since the Feneff decision. If a rule of such long standing is to be changed, we are of opinion that any modification should be accomplished by the Legislature and not by judicial decision. A change of this type by judicial decision is not as easily applied (as in the case of legislation) prospectively or after sufficient notice of a forthcoming change to ensure adequate insurance arrangements. If applied retrospectively to pending cases or to past accidents, the consequences of a change may be unfair to defendants or to their indemnitors.

We note that the Feneff case is discussed in the Forty-sixth Report of the Judicial Council (1970) Pub.Doc. No. 144, pp. 76--78, in the course of its consideration of 1970 House Bill No. 2364 (a proposed legislative overruling of the Feneff case). The Judicial Council has recommended strongly that no bill allowing either spouse to recover for lack of consortium be enacted. ³ Plainly there is not unanimity that the rule growing out of the Feneff case should be altered in any respect. In the circumstances we are of opinion that the matter is not one appropriate for revision by judicial decision.

Order sustaining demurrer affirmed.

TAURO, Chief Justice, dissenting (with whom SPIEGEL and BRAUCHER, JJ., join).

The majority opinion upholds a Superior Court order sustaining the defendants' demurrer to a declaration in tort for loss of consortium, the mutual right of the marriage partners to each other's fellowship, companionship, affection, cooperation in every conjugal relationship, including sexual relations. I am unable to agree with the majority view. See Bigaouette v. Paulet, 134 Mass. 123, 124; Lippman, The Breakdown of Consortium, 30 Col.L.Rev. 651 (1930). The plaintiff's declaration alleges that, as a result of the defendant's negligence, her husband sustained injuries which prevented him from maintaining a normal marriage relationship with her.

The right of a spouse to recover for the loss of consortium after acts constituting criminal conversation, enticement or adultery, has been consistently upheld in Massachusetts. Bigaouette v. Paulet, supra; Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890; Whittet v. Hilton, 335 Mass. 164, 138 N.E.2d 596; Saeli v. Mangino, 353 Mass. 591, 234 N.E.2d 724; Kaye v. Newhall, 356 Mass. 300, 249 N.E.2d 583. Yet, the right of a wife to recover for the loss of consortium for a personal injury negligently inflicted on her husband by another has never been recognized in this Commonwealth.

The common law rule that a married woman has no ause of action for loss of consortium was accepted by this court early in the nineteenth century. Barnes v. Hurd, 11 Mass. 59 (1814). Near the close of that same century, this court recognized the right of a husband to recover for loss of consortium because of personal injuries negligently inflicted upon his wife by a third party and simultaneously permitted the wife to recover damages in her own right for her personal injuries. Kelley v. New York, N.H. & H. R.R., 168 Mass. 308, 46 N.E. 1063 (1897). The court, at that time, declined to decide whether a wife, 'by reason of * * * (statutes) increasing the rights of married women' (p. 311, 46 N.E. p. 1063) might maintain an action for the loss of her husband's consortium resulting from negligently inflicted injuries to her husband. The court said, 'The question has been considered elsewhere, but the decisions are not in harmony.' (P. 312, 46 N.E. p. 1064.)

Thereafter, in 1906, it was decided that a judgment for the defendant in a tort action brought by a wife for negligently inflicted personal injuries did not bar her husband's independent action for loss of consortium resulting from those same injuries. Duffee v. Boston Elev. Ry., 191 Mass. 563, 564, 77 N.E. 1036. The husband's right to recover for the negligently caused loss of his wife's consortium was reaffirmed in Hey v. Prime, 197 Mass. 474, 84 N.E. 141 (1908), but held not to survive the tortfeasor's death.

In Feneff v. New York Cent. & H.R. R.R., 203 Mass. 278, 89 N.E. 436 (1909), an opinion written by Chief Justice Knowlton, who also wrote the opinion in the Duffee case, supra, only three years earlier, this court held that a wife could not maintain an action for loss of consortium where her husband had previously recovered for his personal injuries caused by the same negligent acts of the defendant. However, the holding of the court in the Feneff case did not deny the right of the husband or of the wife for that matter, to recover for injuries, including loss of consortium, in a negligence action brought together with the spouse's action. On the contrary, the court asserted that '(t)he right to the consortium of the other spouse seems to belong to husband and wife alike, and to rest upon the same reasons in favor of each.' 203 Mass. at 280, 89 N.E. at 437. Far from totally abolishing the husband's rights, such language--albeit dicta--would seem rather to constitute an implicit recognition of the wife's right to recover for loss of consortium in an action brought under appropriate circumstances. No mention is made in the Feneff case of Duffee v. Boston Elev. Ry., supra, in which case the husband brought his action after the wife had failed to prevail in hers, although the court did distinguish Kelley v. New York, N.H. & H.R.R., supra, in which the husband and wife's actions were tried together.

In Bolger v. Boston Elev. Ry., 205 Mass. 420, 91 N.E. 389 (1910), with, in my opinion, misplaced reliance on the Feneff case as authority, this court held that the husband could not recover for loss of his wife's consortium in a negligence action tried together with an action for her wrongful death.

In Whitcomb v. New York, N.H. & H. R.R., 215 Mass. 440, 442, 102 N.E. 663, 664 (1913), the husband was not permitted to recover for the loss of his wife's consortium where she had 'received full compensation from the defendant for any injuries' (emphasis supplied).

In Gearing v. Berkson, 223 Mass. 257, 260, 111 N.E. 785, 786 (1916), without any analysis, the court simply stated that 'consequential damages for loss of consortium cannot...