Montgomery v. Stephan, 16

Decision Date25 February 1960
Docket NumberNo. 16,16
Citation101 N.W.2d 227,359 Mich. 33
PartiesShirley MONTGOMERY, Plaintiff-Appellant, v. William S. STEPHAN, Defendant-Appellee.
CourtMichigan Supreme Court

Louis L. Welner, Detroit, for plaintiff and appellant.

Carl F. Davidson, Detroit, for defendant and appellee.

Hart & Gold, Detroit, amicus curiae for petitioner.

Before the Entire Bench.

SMITH, Justice.

The action before us is brought by a wife. She tells us 1 that the defendant was driving his car in a reckless manner and in so doing struck her husband's car at a time when her husband, driving with care and caution, was almost completely across an intersection. As a result of such impact her husband's car was driven against a tree, embedding the bark thereof in his head. He suffered brain concussion which may develop into epilepsy, he lost the voluntary functioning of his kidneys, he sustained 4 fractures of the pelvis, a puncture of the abdomen, and other severe injuries. We could go on for some time but need not. Some of the injuries may be repaired, at least after a fashion, and others may lot.

She is suing for damages for none of these. Her cause of action involves a hart directly to her, equally obvious, she says, equally disastrous, and equally deserving of the protection of the law. She says, in effect, that the negligence of the defendant has reduced her husband to a physical and psychological wreck, a mere shell of manhood, unable to sleep, unable to work effectively, in constant pain, scared, worried constantly, physically weak, and unable to enjoy even normal social life. She asserts that she has been deprived of her husband's society and comfort, of his aid and companionship, and of normal conjugal affection.

The legal term for her asserted loss is that of 'consortium.' It has been variously defined, sometimes in terms enormously complex as the judges followed the habit of lawyers of never using one word where two may be employed. One of the most careful of the studies of consortium, in fact, attributes to the redundancies of common law pleading much of the confusion and injustice prevalent in this field. 2 Actually, all that consortium means is conjugal fellowship. 3 But the pleader at the common law (following his practice in deeds, wills, contracts, and what-not) alleged the loss of love, companionship, affection, society, comfort, sexual relations, services, solace, and on and on until his dictionary ran dry. It does, indeed, (since it is fellowship between man and wife), embrace all of these things, and more. But the verbosities of common law pleading should not lead the court to absurdities, such as the conclusion, for instance, that consortium has an economic side, for loss of which one may recover, and a sentimental side, for loss of which no recovery may be had. 4 What of the spiritual side? The parental side? The carnal side? It would be a reckless semanticist who would assert that he was able, justifiably, to place each of the various elements of conjugal fellowship in one or the other of the suggested pigeonholes, just as it would be a bold artist who would assert that he could categorize all of the hues of the spectrum into 2 pigeonholes, one marked 'light,' the other marked 'dark.' Such efforts may be amusing as mental exercises but when judges seriously put them forward as grounds for decision, absurdities will result and injustice is bound to be done.

The wife before us, then, seeks recovery for her loss of consortium. To this the trial court replied that, legally speaking, she had not suffered a loss. So it is that she comes to us. The precedents do, indeed, deny her recovery. The husband, it is usually said, may recover for loss of consortium, but not the wife. This is nothing short of ridiculous. If one of the marriage partners may recover for loss of consortium, why may not the other? If the family larder is empty, does only one hunger? They stood together at the altar and jointly they entered into their conjugal relationship. They assumed commensurate rights, duties, and responsibilities. Where, along the line, did it all become one-sided, so that the law will grant recompense to one, on the theory that he has suffered a loss, but not to the other?

These precedents are venerable. Their chains may be moss-encrusted and rusty but only a few courts have held that they no longer control or confine. 5 Thus again we reach the conflict that divides us, for the law, as Dean Pound put it, must be stable, and yet it cannot stand still. Were we to rule upon precedent alone, were stability the only reason for our being, we would have no trouble with this case. We would simply tell the woman to begone, and to take her shattered husband with her, that we need no longer be affornted by a sight so repulsive. In so doing we would have vast support from the dusty books. But dust the decision would remain in our mouths through the years ahead, a reproach to law and conscience alike. Our oath is to do justice, not to perpetuate error.

Is the holding that recovery be denied, in truth the demand of the common law? If so, and the vast amount of authority so saying bears witness thereof, there must, one day, have been reasons for the rule, for, as Holmes tells us, the common law has grown by an historical process. 6

The reasons, then, we seek in the period of time in which the monstrous doctrine had its origin. The status of the wife and mother at this time is made clear in the periodical rulings of the time. She was part chattel, part servant. As we observed in a concurring opinion in an earlier case, Sovereign v. Sovereign, 354 Mich. 65, 73, 74, 92 N.W.2d 585, 590:

'The picture we receive, sketchy as it is, of late 16th and early 17th century women is, by today's standards, a depressing one. She was regarded as a creature (the choice of words is not our own) of limited intellectual attainments or possibilities. Education was largely denied her. There were few schools for even the girls of the wealthier families and the training given in those was limited to that of a 'polishing nature, music and the arts.' There was almost no opportunity for the rigorous intellectual discipline given to young men. They were married young, pawns in their father's hands for the attainment of title or prestige. They could not possibly hope to reach, in fact, they were not 'meant' to reach, intellectual equality with their husbands. Their existence, socially and economically, pivoted around that of a dominant husband, authoritarian and paternalistic.'

With respect to the children of the marriage the husband's so-called rights were near absolute. Although we find no case paralleling the early Roman law, under which the pater familias had the power to sell his child in the open market, or put it to death, 7 it was clear that the English father might effectively prevent the mother's access to her child during his life, 8 and even after his death maintain the bar with statutory sanction.

Such being the mother's 'rights' with respect to her children it follows, with the relentless logic of the common law, that her rights respecting her property and her person are no more generous. She was his chattel. What was hers, was his. The wife says Bracton, 9 'has nothing which is not her husband's.' They were one, and, as one opinion put it, 10 he was that one. All of her personal property, money, goods, and chattels of every description, became his upon marriage. 11 Since she was 'under the power of her husband,' it followed that she had 'no will of her own' and having no will of her own could not enter into a contract. 12 Of course, he was entitled to her services in the home as he would be to those of any servant in his employ. Should he lose them through the acts of another that other must respond in damages. 13 But should the husband be injured, and she thus lose his protection and solace, might she, equally with him, maintain a like suit for her loss? In light of what has been said the question is nonsensical. To have a lawsuit we must have, to start with, some one capable of suing another. She, however, could not bring any action in her own name, for she was a legal nonentity. 14 But this was not all. What if she were so injured by another as to be incapable of performing her wifely duties? Has the husband suffered a legally recognizable loss, so that he might cause that other to respond in damages? The answer is clear from the common law, as is the theory upon which it was based. He had. It was an actionable trespass for one to interfere with the services of another's servant. 15 This menial in the house, this chattel, responding to the term 'wife,' also rendered services. It would follow, and it did follow, that the husband had a right of action for injury to her, grounded upon the theory that she was his servant. 16 But could she sue a wrongdoer for injury to him? A servant sue for the loss of services of the master? Clearly not. If authority is needed for reply, Blackstone 17 supplies it:

'One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.'

This, then, is the soil in which the doctrine took root; the abject subservience of wife to husband, her legal nonexistence, her degraded position as a combination vessel, chattel, and household drudge whose obedience might be enforced by personal chastisement. Such being the case we need not cite authority to the proposition that the husband might at the common law, and may today, in the vast majority of jurisdictions, sue for injury to or loss by his wife's services, affection, and companionship. But may a wife sue for loss of consortium? The modern answer, as well as the ancient, is that she may not. The abundance of the cases so holding is a monument to blind adherence to worn-out...

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