Nickel v. Hardware Mut. Cas. Co.

• Decision Date: 03 May 1955
• Parties: Rovella NICKEL, Plaintiff and Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, a domestic insurance corp., The Copps Company, a domestic corporation, and Edward M. Moscinski, Defendants and Respondents.
• Court: Wisconsin Supreme Court

Page 205

70 N.W.2d 205

269 Wis. 647

Rovella NICKEL, Plaintiff and Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, a domestic insurance

corp., The Copps Company, a domestic corporation,

and Edward M. Moscinski, Defendants and

Respondents.

Supreme Court of Wisconsin.

May 3, 1955.

Brazeau & Brazeau, Wisconsin Rapids, for appellant.

Fisher, Peickert, Anderson & Fisher, Stevens Point, John E. Shannon, Jr., Stevens Point, of counsel, for respondents.

GEHL, Justice.

The question is: Has a wife a cause of action for the loss of consortium of her husband caused by the negligent act of a third person?

Although it has been presented numerous times, this court has not been called upon to consider it. Almost without exception the courts which have had to deal with the question have answered in the negative. In Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 a wife's right to maintain such action was upheld. Prior to that decision only one jurisdiction had reached the same conclusion. Hipp v. E. I. Dupont de Nemours & Co., 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873. Plaintiff places some reliance upon this case. It should be observed, however, that it was overruled by the same court in Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889. See annotation, 23 A.L.R.2d 1378. No doubt the many cases in which a wife's claim has been rejected provide the basis for the rule as it is stated in 3 Restatement, Torts, sec. 695:

'A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests or for any expense incurred in providing medical treatment for her husband.'

We should note in connection with the Hitaffer Case, supra, that since two other United State Courts of Appeal have joined with the majority. Seymour v. Union News Co., 7 Cir., 217 F.2d 168; Filice v. United States, 9 Cir., 217 F.2d 515. Both were decided in 1954. A rule of the common law so universally and persistently adhered to by the courts of sister states and declared by the text writers should not be ignored unless a legislative intent to abrogate it has been clearly expressed. Kappers v. Cast Stone Construction Co., 184 Wis. 627, 200 N.W. 376.

'When it is claimed that a statute imposes new and very onerous responsibilities, not recognized by the common law, upon individuals and corporations, it should be shown that such meaning is very plain. It should not depend upon implication, nor be helped out by the interpolation of words or phrases.' Highway Trailer Co. v. Janesville Electric Co., 187 Wis. 161, 179, 204 N.W. 773, 780.

Plaintiff contends that an intent to change the rule is expressed in sec. 6.015, Stats. which reads 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. The various courts, executive and administrative officers shall construe the statutes where the masculine gender is used to include the feminine gender unless such construction will deny to females the special protection and privileges which they now enjoy for the general welfare. The courts, executive and administrative officers shall make all necessary rules and provisions to carry out the intent and purposes of this statute.'

It has been said by this court that its only purpose was to remove those disabilities which a woman incurred upon her marriage at the common law and to restore to her the rights which she enjoyed as a feme sole.

'From an early day this court has held that statutes conferring upon married women the rights which they possessed before their marriage was not so much the creation of a power which a married woman never possessed as a restoration of power which she had as a feme sole and which she lost by her marriage.' Wait v. Pierce, 191 Wis. 202, 209 N.W. 475, 477, 210 N.W. 822, 48 A.L.R. 276.

In Singer v. Singer, 245 Wis. 191, 14 N.W.2d 43, 46, we said that sec. 6.015, Stats. must be read in connection with sec. 246.07 Stats. which provides:

'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 court said:

'This section which has been upon the statute books for many years limits a wife's right to maintain an action in her own name to injuries to her person or character. Nor is this provision of the statute enlarged by sec. 6.015, [(1), Stats.] * * *'

The fact that ...