Nicholson v. Hugh Chatham Memorial Hospital, Inc., 104

• Decision Date: 03 June 1980
• Docket Number: No. 104,104
• Citation: 300 N.C. 295,266 S.E.2d 818
• Parties: Eunice NICHOLSON v. HUGH CHATHAM MEMORIAL HOSPITAL, INC. and Dr. Richard B. Merlo, M. D.
• Court: North Carolina Supreme Court

Page 818

266 S.E.2d 818

300 N.C. 295

Eunice NICHOLSON v. HUGH CHATHAM MEMORIAL HOSPITAL, INC. and Dr. Richard B. Merlo, M. D.

No. 104.

Supreme Court of North Carolina.

June 3, 1980.

Latham, Wood & Balog by Steve A. Balog, Burlington, for plaintiff-appellant.

Haywood, Denny & Miller by George W. Miller, Jr., Durham, for defendant-appellee Hugh Chatham Memorial Hospital.

Henson & Donahue by Perry C. Hensen, Greensboro, for defendant-appellee Dr. Richard B. Merlo.

CARLTON, Justice.

Plaintiff presents the sole question whether under the law of North Carolina a wife has a cause of action for loss of consortium resulting from a negligent injury to her husband. The Court of Appeals correctly recognized the historical and common law rule in North Carolina and answered no. For reasons stated below, we reverse.

I.

At common law, consortium embraced those marital rights a husband had in respect to his wife. 2 R. Lee, North Carolina Family Law § 205 (3d ed. 1963); Prosser, Law of Torts § 125 (4th ed. 1971); Note: Torts Recognition of Wife's Right to Husband's Consortium, 47 N.C.L.Rev. 1006 (1969). Precisely what those rights were, however, has been open to various interpretations, see, e. g., Lee, supra at § 205 and authority cited therein; Note: The Case of the Lonely Nurse: The Wife's Action for Loss of Consortium, 18 West.Res.L.Rev. 621 (1967), and the term has been defined "sometimes in terms enormously complex as the judges followed the habit of lawyers of never using one word where two may be employed." Montgomery v. Stephan, 359 Mich. 33, 35, 101 N.W.2d 227, 228 (1960). Certainly, at common law the husband's action for loss of his wife's consortium was based on the understanding that his legal obligation to support his wife was balanced by her obligation to serve him. Note: The Case of the Lonely Nurse, supra at 622; Harper & Skolnick, Problems of the Family 11 (1962). This definition has been amended in other jurisdictions, however, so that the essence of consortium today has become the mutual right of a husband and wife to the society, companionship, comfort and affection of one another. Hitaffer v. Argonne Company, 183 F.2d 811 (D.C.Cir.), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950); overruled on other grounds, Smither & Company, Inc. v. Coles, 242 F.2d 220, cert. denied, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429 (1957). Unquestionably, this society and companionship includes a sexual component. Cf. Deems v. Western Maryland Railway Co., 247 Md. 95, 231 A.2d 514 (1967) (Consortium includes sexual relations); Ekalo v. Constructive Service Corporation of America, 46 N.J. 82, 215 A.2d 1 (1965) (Compensation for impotent husband is a measure of loss of consortium); Note: 47 N.C.L.Rev. 1006, supra (Three most prominent elements in the consortium interest are "services, sexual intercourse and general companionship").

At common law, a husband could sue negligent third parties for loss of his wife's consortium, but a wife had no comparable cause of action. Indeed, at common law, a wife could not even sue for her own personal injuries without joinder of her husband, King v. Gates, 231 N.C. 537, 57 S.E.2d 765 (1950); Hipp v. DuPont, 182 N.C. 9, 108 S.E. 318 (1921); Lee, supra at § 205. The reason for this inequity was that a wife was regarded as little more than a chattel in the eyes of the law. Only a husband could maintain an action for a wife's injuries and he could do so for the same reason he could maintain action for injury to his horse, his slave or his other property. Hipp v. DuPont, supra. See also 3 W. Blackstone, Commentaries 143 (Lewis ed. 1897). All were his inferiors; none had capacity in themselves to sue.

The married women's provision in the North Carolina Constitution of 1868, Article X, section 6, abolished this unrealistic legal concept of married women, and provided that a wife's property no longer automatically became that of her husband upon marriage. Hipp v. DuPont, supra. The legislature further clarified a wife's legal position in 1913 by enacting the precursor to our present G.S. 52-4. That statute provided that any damage for her own personal injuries could be recovered by a wife suing alone. Lee, supra at § 205.

Even after passage of this legislation, it was clear that a husband could continue to maintain an action for loss of his wife's consortium, see, e. g., Hipp v. DuPont, supra: Bailey v. Long, 172 N.C. 661, 90 S.E. 809 (1916). The question remained open, however, whether the married women's legislation in North Carolina gave a wife the equal right to sue for loss of her husband's consortium.

In Hipp v. DuPont, supra, this Court first considered the question and answered in the affirmative. There, plaintiff's husband sued and lost in a Virginia court for injuries he received as a result of his employment at defendant's chemical plant in Hopewell, Virginia. The family subsequently moved and plaintiff sued in North Carolina to recover his expenses incurred in maintaining her husband, for services performed in caring for her husband, for loss of his support and maintenance, for loss of his consortium and for her own mental anguish.

The Court in Hipp held that as a husband could continue to sue for loss of his wife's consortium, then by virtue of the married women's legislation and by virtue of logic and fairness, the plaintiff wife could maintain an action in her own behalf for loss of her husband's consortium.

This view did not last long. Four years later in Hinnant v. Tidewater Power Company, 189 N.C. 120, 126 S.E. 307 (1925), the Court expressly overruled Hipp, noting as it did so, that it joined the weight of authority in other jurisdictions.

In Hinnant, plaintiff's husband was injured by a train crash at 6:30 a. m. and died the following morning at 3:00 a. m. Plaintiff wife sued for mental shock and anguish, loss of support, and loss of her husband's "society, love and affection, his counsel and advice, his tender ministration in sickness, and the many comforts and pleasures which the marital relationship brings to those who are congenial with each other." 189 N.C. at 121, 126 S.E. at 308.

The judge instructed the jury that among other things, they could allow damages in the amount of fair compensation for plaintiff's loss of the society and companionship of her husband suffered between the time of his injury and the time of his death.

The jury awarded damages to plaintiff for loss of consortium. On appeal, this Court reversed the award and expressly overruled Hipp v. DuPont. In holding that a wife could no longer sue for loss of her husband's consortium, the Court gave four grounds for its decision. First, the Court emphasized that historically the wife had no action for consortium. The inference was that the married women's legislation had not changed that historical inability. Second, the Court emphasized that consortium included a predominant factor of service and that any attempt to separate that service element from society, companionship and affection was impossible. Thus, it held that a husband's right to recover loss of his wife's consortium was in actuality a right to recover for loss of her services. As the married women's acts had given the wife a right to recover for loss of her services in her own name, nothing compensable remained of a right to consortium. The inference of such a holding was that damages from loss of society and companionship rather than loss of service would be impossible to measure.

Third, the Court held that the wife's damages were too remote a consequence of a defendant's negligent injury of her husband to have been proximately caused by that injury. The Court apparently feared expansion of the cause of action so that unrelated third parties such as children, parents and employers would attempt to recover.

Fourth, the Court was concerned that to allow a wife's action for loss of consortium, particularly when the main component of that action was compensation for lost service, would allow double recovery. A husband, suing in his own behalf, would recover for loss of his services while a wife, suing for loss of consortium, would recover for loss of the selfsame services.

After Hinnant, a wife in North Carolina could not maintain an action for loss of consortium due to the negligence of third parties. The common law right of a husband to maintain such an action remained intact. That inequity was remedied in Helmstetler v. Duke Power Company, 224 N.C. 821, 32 S.E.2d 611 (1945). There plaintiff husband sued a defendant whose bus had seriously injured his wife. The Court affirmed summary judgment for defendant citing Hinnant and reasoning that because a wife had no cause of action for loss of consortium, a husband had no such cause of action either. Each spouse stood on a parity with each other and could recover for injuries done to each individually. Neither, however, could recover for loss of consortium due to negligent injuries to the other spouse.

Such has been the law in this jurisdiction since 1945. For the reasons stated below, however, we no longer consider this sound policy and expressly overrule Hinnant and Helmstetler.

II.

A close reading of both Hinnant and Helmstetler in the context of North Carolina law reveals several inconsistencies and anomalies which one leading case has termed "legalistic gymnastics." Hitaffer v. Argonne Company, supra at 816.

Taken together, Hinnant and Helmstetler strip both spouses of a right to recover for what can be a very real injury to the marital partnership. Such denuding contradicts the policy of modern law to expand liability in an effort to afford decent compensation as a measure to those injured by the wrongful conduct of others. Diaz v. Eli Lilly and Company, 364 Mass. 153, 302 N.E.2d 555 (1973); Ekalo v. Constructive Service Corporation, supra. The intent behind such a policy is presumptively to allow recourse for a definite injury to a legitimate...