Nash v. Mobile & O. R. Co.

• Decision Date: 19 March 1928
• Docket Number: 26944
• Parties: NASH v. MOBILE & O. R. CO. [*]
• Court: Mississippi Supreme Court

116 So. 100

149 Miss. 823

NASH v. MOBILE & O. R. CO. ^[*]

No. 26944

Supreme Court of Mississippi

March 19, 1928

Division B

HUSBAND AND WIFE. Notwithstanding emancipation statute, married woman has no cause of action for loss of consortium through negligent injury of husband (Hemingway's Code 1927 section 2185).

A married woman cannot recover for loss of consortium from mere negligent injury of her husband she having no such cause of action at common law, and Code 1906, section 2517 (Hemingway's Code 1927, section 2185) emancipating her from all disabilities on account of coverture, giving her none.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Lowndes county, HON. J. I. STURDIVANT, Judge.

Action by Angie Nash against the Mobile & Ohio Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

Guy J. Rencher, for appellant.

Under the statutes and constitution, in the state of Mississippi, woman has been emancipated, having all the rights, duties and responsibilities touching the ownership and control of property as a man. Now then, if this be true, can the wife recover for the loss of consortium of her husband? The wife is just as much entitled to the social relations with her husband as the husband is to these relations with the wife. Our court held in Brahan v. Meridian L. & R. R. Co., 121 Miss. 269, that under our statutes the husband could recover for the loss of the consortium of his wife, notwithstanding the fact that Mrs. Brahan had recovered in the courts for her injury. The question presented by this case has never passed on by the supreme court of this state so far as we have been able to ascertain. When, by the negligence of a third party the husband has been damaged to such an extent as to deprive the wife of the enjoyment of his society, she, the wife, has thereby suffered a loss for which the husband cannot recover, because it is a loss to the wife and not a loss to the husband. The court held in the Brahan case, supra, that the husband could recover under our statutes for the loss of the consortium of his wife, and we earnestly submit and insist that in view of the liberal statutes of emancipation of married women in Mississippi, there can be no valid reason why the wife should not be compensated for the loss of the consortium of her husband, if the husband could be compensated for the loss of the consortium of his wife.

We have been unable to find any case in point, but we do find the following quotation in brief for appellant, Brahan case, supra, page 276, to-wit: "No valid distinction can be drawn between the husband's right to recover for the loss of his wife's consortium, in cases growing out of the negligence of a third party, and the wife's right to recover for loss of the husband's consortium in like cases; neither can it make any difference that, in the case of the wife, the loss of consortium is or may be the sole ground of recovery, and in the case of the husband it is or may be one of several grounds of recovery," and we adopt this ground of reasoning as to our proposition.

Carl Fox and Owen & Garnett, for appellee.

Appellant's attorney does not contend that the Brahan case sustains his contention, but argues that the reasoning of that case should be extended to the case of a wife who sues for loss of consortium. In so doing, he argues for the creation by implication, or by judicial construction, of a new right in the wife, where no such right had before existed. Two cases relied on by the defendant in the Brahan case, were mentioned in the opinion of the court: Marri v. R. R. Co., 78 A. 582, in which the supreme court of Connecticut denied the right of the husband to recover for loss of consortium; and Feneff v. R. R. Co., 89 N.E. 436, in which the supreme court of Massachusetts denied the right of the wife to recover for such loss. This court said it would not follow the Marri case because it was against the overwhelming weight of authority; and the only reference it made to the Feneff case was to say it was a "Massachusetts case in which the wife sued for injuries to her husband." The basis of the decision in the Brahan case is the husband's common-law right to the services of his wife in their home, and legislation removing disabilities of coverture had not impaired that right, said the court. We now insist that just as modern legislature did not deprive the husband of his common-law right, so it did not create in the wife a right which never existed at common law.

It was settled at common law that for personal injuries to a husband no right of action arose in favor of his wife. The reasons why she could not recover were: (1) Double damages might thereby be recovered from the same defendant, for in an action by the husband he could recover for being incapacitated to care for, associate with, and protect her, as well as being deprived of his right to consort with her; (2) a negligent injury to the husband affects the wife only indirectly or collaterally, calling for mere compensatory damages, which the husband while living, or his personal representative after his death, could collect, thus settling the grievance once for all, and when damages were collected the wife was supposed to receive some benefit from them. Emerson v. Taylor, 104 A. 538; Kelly v. N.Y. R. Co., 46 N.E. 1063; Feneff v. N.Y. C. R. Co., 89 N.E. 426; Brown v. Kistleman, 98 N.E. 631; Tobiassen v. Polley, 114 A. 153; Kosciolek v. Portland R. Co., 160 P. 132; Bernhardt v. Perry, 209 S.W. 426; Gambino v. Mfg. Coal Co., 158 S.W. 77; Stout v. K. C. Term. Co., 157 S.W. 1019; Smith v. Nicholas Bldg. Co., 112 N.E. 204.

The unanimous weight of authority is to the effect that legislation removing common-law disabilities, permits her to sue for a direct invasion of her right of consortium as for alienation of the husband's affections, or for his enticement, or seduction; for in such instances the wrong was directed against her; and as the husband was a participant in the wrong, unless the wife could sue, there could be no suit. But for an injury negligently inflicted upon the husband, there was no intentional wrong directed against her; the injury to her, if any, was not direct, but consequential or collateral, and in such case the law goes no further than to allow compensation for the impairment or injury directly done, that is, to the husband.

Court after court, construing "emancipation acts" as liberal as our own, has said that such legislation did not create in the wife a substantive right of action where there had been none before, but merely empowered her to protect that which was already hers. As was held in the Brahan case, the husband was entitled to her services in the home, and could sue for the loss of those services caused by the negligent act of another, because that was his common-law right, of which the "emancipation acts" had not deprived him; but that case cannot fairly be extended so as to create in her a right to sue for a wrong not directed against her, and in which her damage is consequential or collateral. 13 R. C. L., 1443, sec. 493; Emerson v. Taylor, 104 A. 538; Kosciolek v. Portland Ry. L. & P. Co., 160 P. 132; Cravens v. L. & N. R. Co., 242 S.W. 628; Goldman v. Cohen, 63 N.Y.S. 459; Brown v. Kistleman, 98 N.E. 631; Feneff v. N.Y. C. & H. R. R. Co., 89 N.E. 436; Bernhardt v. Perry, 26 S.W. 463.

The Married Women's Act of Missouri, as construed in Bernhardt v. Perry, supra, is fully as liberal and far reaching as the Mississippi statute on the same subject, and it may be noted that the Missouri court reasoned its way to a conclusion without citation of the decisions of other courts; and yet it reached the same conclusion that all the other courts in construing similar acts have reached, and denied the plaintiff the right to recover for the swarm of calamities which she insisted had been visited upon her because of her husband's injury. Smith v. Nicholas Building Co., 112 N.E. 204; Neiberg v. Cohen, 92 A. 215; Tobiassen v. Polley, 114 A. 153; Hinnant v. Tide Water Power Co., 126 S.E. 307. The overwhelming weight of authority warrants us in saying: That courts in every section of this country have drawn a distinction between the husband's right to recover for loss of consortium growing out of the negligent injury of the wife, and the wife's right to recover for the negligent injury of the husband. That she had no such right to his services at common law, and, therefore, could not recover for loss of consortium as a result of injury negligently inflicted upon him. In return for her services in the home she was entitled to look to him for support and maintenance, and when he recovered damages for injury as a result of negligence, he, from the viewpoint of the law, was made whole, and thereafter was able to perform all his marital obligations to her the same as before his injury, and thus his wife and children shared the benefits of his recovery. If after he had legally been made whole he failed in his duty, her remedy was against him, not against the author of his injury. That the law compensates for direct damages sustained as a result of negligence, but not, for remote, consequential or collateral damages, which could not reasonably have been anticipated, or within the contemplation of the parties at the time of the injury, and that impairment of the value and satisfaction of the wife's consortium with the husband as a result of his injury, is not such an injury as could fairly be held to be the direct and proximate consequence of the injury to him.

OPINION

PACK, J.

Cecil Nash, husband of appellant, sustained a personal injury due to one of appellee's trains colliding with his automobile at a crossing. He recovered a judgment against appellee...