Moran v. Quality Aluminum Casting Co.

• Decision Date: 28 April 1967
• Citation: 34 Wis.2d 542,150 N.W.2d 137
• Parties: Joseph MORAN, Plaintiff, La Verne Moran, Appellant, v. QUALITY ALUMINUM CASTING CO., a Wis. corp., Respondent, Wisconsin Electrit Power Co., a Wis. corp., Defendant.
• Court: Wisconsin Supreme Court

Page 137

150 N.W.2d 137

34 Wis.2d 542

Joseph MORAN, Plaintiff, La Verne Moran, Appellant, v. QUALITY ALUMINUM CASTING CO., a Wis. corp., Respondent, Wisconsin Electrit Power Co., a Wis. corp., Defendant.

Supreme Court of Wisconsin.

April 28, 1967.

Schneider & Tammi, Milwaukee, for appellant.

Hippenmeyer, Reilly, Fritz & Arenz, Waukesha, for respondent.

Prosser, Zimmermann & Wiedabach, Milwaukee, amicus curiae.

CURRIE, Chief Justice.

The sole issue presented by this appeal is whether a wife has a cause of action for loss of the consortium of her husband who has been injured by the negligent acts of a third person.

Twelve years ago this court in Nickel v. Hardware Mutual Casualty Co. ¹ held that a married woman did not possess such right of action at common law and that it had not been conferred by statute. Thus the crucial question is whether that decision should now be overruled.

We will first approach the problem from the standpoint of the common law. Prior to 1950 the common law did not recognize a cause of action on the part of a married woman for loss of the consortium of her husband due to negligent acts of a third party. ² This was because upon marriage, husband and wife became one, and he was that one. The personal property, money and chattels of the wife became those of her husband. She could neither contract nor bring an action of any kind, for she was a legal nonentity. ³ Blackstone declared:

'By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. * * * Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.' ⁴

Blackstone also advanced the further reason that the wife, being the inferior, could not sue a wrongdoer for injury to her husband, her superior:

'* * * 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.' ⁵

As explained in Montgomery v. Stephan, ⁶ a recent decision by the Michigan supreme court:

'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.'

Obviously the historical milieu in which the doctrine originated has changed completely. Nevertheless, despite obvious changes in the social, economic and legal status of women, the common law doctrine allowing the husband a right of action for loss of consortium, but denying the wife a reciprocal action, was uniformly adhered to by the courts until 1950. ⁷

The circuit court of appeals for the District of Columbia in 1950 made a sharp break with these past decisions in Hitaffer v. Argonne Co. ⁸ and held that a wife has a cause of action for loss of consortium due to an injury negligently inflicted upon her husband. In so holding, the court stated:

'* * * we remain unconvinced that the rule which (has been) laid down should be followed in the District of Columbia. On the contrary, after piercing the thin veils of reasoning employed to sustain the rule (denying the wife recovery), we have been unable to disclose any substantial rationale on which we would be willing to predicate a denial of a wife's action for loss of consortium due to a negligent injury to her husband.' ⁹

It then quoted with approval the following from an 1889 New York case ¹⁰ in which a wife had sued for the intentional enticing away of her husband which she alleged deprived her of his 'comfort, aid, protection and society:'

"The actual injury to the wife from loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband, and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation, not only of natural right, but also of a legal right, arising out of the marriage relation. * * * As the wrongs of the wife are the same in principle, and are caused by acts of the same nature as those of the husband, the remedy should be the same." ¹¹

At the time this court was called upon to decide Nickel v. Hardware Mut. Casualty Co. ¹² the Hitaffer Case stood almost alone, ¹³ and its holding had been rejected by a number of other courts faced with the identical issue. ¹⁴ Since Nickel a very respectable group of jurisdictions have broken from the ranks of those denying recovery under the common law rule and have held the wife's right to the loss of consortium to be one cognizable at law, ¹⁵ while others still adhere to the old rule. ¹⁶ Comments in texts and law reviews almost unanimously have favored recovery by the wife. ¹⁷ Prosser, in commenting on the decisions which have denied a cause of action to the wife for loss of consortium in actions grounded on negligence states:

'There has been almost universal condemnation of such a result on the part of legal writers. Obviously it can have no other justification that that of history, or the fear of an undue extension of liability of the defendant, or a double recovery by wife and husband for the same damages. The loss of 'services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband. Nor is any valid reason apparent for allowing her recovery for a direct interference by alienation of affections, and denying it for more indirect harm through personal injury to the husband, where no such distinction is made in his action. * * * 'Around 1958 something of a current of support for the Hitaffer case set in, and since that date the trend has been definitely in the direction of approval. It now stands accepted, and the wife is allowed her action in Arkansas, Delaware, the District of Columbia, Georgia, Illinois, Iowa, Michigan, Missouri, Montana, Nebraska, Oregon, and South Dakota. Since a considerable number of the courts which have rejected the change have approved it in principle, but have said that it should be for the legislature to make, the prediction is probably justified that the trend will continue, and that public opinion as to the equality of the sexes will have its effect in persuading the courts.' ¹⁸

A recent federal case ¹⁹ has grounded its holding that a wife has a cause of action for loss of consortium on the equal protection of the laws clause of the Fourteenth amendment.

In its opinion the court stated:

'However the right is characterized, it arises from the marital relation, and to say that it inheres in the husband but not the wife is to indulge in what the Hitaffer court termed 'legal gymnastics.' And to grant a husband the right to sue on this right while denying the wife access to the courts in the assertion of this same right is too clearly a violation of Fourteenth Amendment equal protection guarantees to require citation of authority.' ²⁰

Both logic and the interest of justice require that, if a husband is to be accorded the right to recover for loss of consortium of the wife injured through the negligent act of another, a wife also should be accorded the same right where she sustains a loss of consortium of the husband. The genius of the common law is its ability to adapt itself to the changing needs of society. Because the bases on which the old common law rule which denied to the wife the right of recovery for loss of her husband's consortium rest on historical concepts which long ago disappeared, we deem the rule of Nickel v. Hardware Mut. Casualty Co. should be overruled unless we are prevented from so doing by that portion of the decision which rests upon statutory interpretation.

The two statutes construed in Nickel were secs. 6.015 and 246.07, Stats., 1953, which provided as follows:

'6.015 Women to have equal rights. (1) Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects.' * * * (Italics supplied.)

'246.07 May sue in her own name. Every married woman may sue in her own name and shall have all the remedies of an unmarried woman in regard to her separate property or business and to recover the earnings secured to her by sections 246.05 and 246.06, and shall be liable to be sued in respect to her separate property or business, and judgment may be rendered against her and be enforced against her and her separate property in all respects as if she were unmarried. And any married woman may bring and maintain an action in her own name for any injury to her person or character the same as if she were sole. She may also bring and maintain an action in her own name, and for her own benefit, for the alienation and the loss of the affection and society of her husband. Any judgment recovered in any such action shall be the separate property and estate of such married woman. Nothing herein contained shall affect the right of the husband to maintain a separate action for any such injuries as are now provided by law.'

The gist of the court's construction of these two statutes in Nickel was this: The enumeration in sec. 246.07, Stats. of the actions which a married...