Novak v. Kansas City Transit, Inc.

• Decision Date: 11 March 1963
• Docket Number: No. 49233,49233
• Citation: 365 S.W.2d 539
• Parties: Rita NOVAK, Appellant, v. KANSAS CITY TRANSIT, INC., a Corporation, Respondent.
• Court: Missouri Supreme Court

Page 539

365 S.W.2d 539

Rita NOVAK, Appellant, v. KANSAS CITY TRANSIT, INC., a Corporation, Respondent.

No. 49233.

Supreme Court of Missouri, En Banc.

March 11, 1963.

S. David Trusty, William J. Marsh, Francis L. Roach, Kansas City, for appellant. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

Harold T. VanDyke, Kansas City, for respondent. Linde, Thomson, Vandyke, Fairchild & Langworthy, Kansas City, of counsel.

COIL, Commissioner.

Rita Novak's petition averred that her husband, while a passenger in an automobile, was negligently injured by respondent and as a result she had been deprived of his consortium, including his companionship and conjugal affection, for which she sought $100,000 as damages.

Respondent's motion for summary judgment was sustained on the ground that a wife may not recover for loss of consortium caused by the negligence of a third party, and Mrs. Novak has appealed.

Under the early common law, although a husband was permitted to recover for an impairment or loss of the consortium (including services and society) of his wife, the wife could not recover for the loss of her husband's society, either because she had no such right or because she was denied any remedy for an invasion thereof. See 4 St. Louis U.L.J. 424, 425, 426.

The passage of the Married Women's Act in Missouri (present Secs. 451.250-451.300 RSMo 1959 and V.A.M.S.), which changed the status of married women, made it inevitable that the courts would need to decide whether the husband's right of action to recover for loss or consortium had been eliminated by the Act or whether the historical basis for the husband's rights should be ignored and the view adopted that rights which he had always had were now equal rights as between husband and wife and thus should be enjoyed also by the wife.

And so it was that the courts of this state held that the husband's right of action remained even after the Married Women's Act and that he could recover for the loss of his wife's society by reason of injury to her as a result of the third party's negligence, separate and apart from any loss of her services. Furnish v. Missouri Pac. Ry. Co. (1891), 102 Mo. 669, 15 S.W. 315.

And so it was also that this court in Clow v. Chapman (1894), 125 Mo. 101, 28 S.W. 328, 26 L.R.A. 412, was called upon to determine 'whether a wife has a corresponding action against third persons for the alienation of the affections of her husband, and depriving her of his society.' 28 S.W. 329. The court in the Clow case contrasted the status of a married woman with respect to her personal rights under the common law and under the Married Women's Act as it then existed. It was noted that at common law the legal existence of a wife was suspended or consolidated into that of her husband during marriage and that certain disabilities to the wife followed from that principle of unity. It was pointed out also that Missouri statutes then in existence provided among other things that all rights of action which had grown out of any violation of a wife's personal rights should be her separate property and under her sole control and that she might in her own name institute and maintain an action for the recovery of such property with the same force and effect as though she were a femme sole.

Significantly, the court in the Clow case specifically assumed that at common law a wife could not maintain an action against third persons for depriving her of her husband's society because her legal existence had been merged into that of her husband by the marriage. Based upon that premise the court decided the exact issue before it in this broad and comprehensive language: 'The case then turns upon the effect to be given to these [Married Women's] statutes. They are disabling to a large extent, so far as they apply in terms to the husband, and they are enabling in so far as they apply to the wife. They give her an entirely different standing from that occupied by her at common law. Her position is now more like that of a wife under the civil law. Instead of her legal existence being suspended, as incorporated and consolidated into that of her husband, she is made to stand out in bold relief, with a separate and distinct legal existence as to her property, and also as to her personal rights; and she may enforce all such rights by proceedings in her own name, independently of her husband. She is placed upon an equality with her husband in many, and indeed most, respects. By force of the marriage contract, husband and wife are each entitled to the society and comfort of the other,--the one to as great an extent as the other. As a wife is now placed on an equality with her husband in respect of her property and personal rights, and as a husband may have his action, as against a third person, for enticing away his wife, the wife has her action against third persons for enticing away her husband. * * *

'But it is insisted on behalf of the defendant that the statutes of this state, before set out, do not confer upon the wife any new rights; that the personal rights mentioned in these statutes are the personal rights which she had at common law; that disabilities are removed, but no new rights are created, and, as she had no right of action at common law to remedy a wrong like the one in question, she has none under the statute law. There is, at first blush, some force in the argument, but upon consideration we consider it no more than adhearing to a barren technicality. The statutes, when considered in their full scope and purpose, give the wife a separate legal existence, whereas before her legal existence was considered merged into that of her husband, and for this reason and no other she could not maintain the action. New rights and new obligations necessarily arise from the changed condition, as incidents thereto. When she is given the sole control of her personal property, and the right to recover the same by her own suit, it must follow, as an incident, that she has the right to make contracts in respect of such property, though the statute may not, in terms, give her the right to make contracts in relation thereto. Full dominion over her property carries with it the power to dispose of such property, as a necessary incident. So new personal rights and obligations flow to her because of the fact that she is given a separate and distinct legal existence. * * * The statutes of this state concerning married women are for the most part remedial, and should be construed and administered so as to give effect to their general object and purpose. We see nothing in the argument pressed upon our consideration to modify the result before expressed.' (Italics and bracketed insert, present writer's.) Clow v. Chapman, supra, 28 S.W. 330.

We emphasize that the court in Clow held specifically that it was by reason of the marriage contract that the husband and wife were each entitled to the other's so ciety, and that their rights were equal, i. e., each was entitled to the other's society to the same extent as the other, and that because the husband had a right of action against a third person for enticing away his wife, the wife likewise had an action against third persons for enticing away her husband, specifically including the element of the wife's loss of her husband's society. (28 S.W. 329.) Further, the court rejected the argument that inasmuch as historically the wife had no right or remedy at common law for interference with the marital relation and that, inasmuch as the Married Women's Act did not create or confer upon the wife any new rights but only removed former disabilities, the wife did not accede to a right of action by reason of the Act. Thus, the court in the Clow case said, in effect, that whatever force there is to the 'historical basis argument,' we shall ignore, for to give it effect would be to adhere 'to a barren technicality' (28 S.W. 330); that new personal rights flowed to the wife because she had been given a separate and distinct legal existence and that the right to sue for the enticing away of her husband was hers because of the comprehensive scope and purpose of the Married Women's Act.

Later, in Nichols v. Nichols, 147 Mo. 387, 48 S.W. 947, an alienation of affections case, the court affirmed its holding in Clow and left no doubt as to the meaning thereof by this language at page 951: 'By law the wife is entitled to the aid, support, protection, comfort, and society of her husband, and for the wrongful deprivation thereof by any person, by whatever means and however her husband's affection may be thereby affected, she has a right of action against such person for so depriving her of these materal benefits of the marital relation; * * *.' (Italics present writer's.)

In December 1918 the court en banc had before it in Bernhardt v. Perry, 276 Mo. 612, 208 S. W. 462, 13 A.L.R. 1320, the question whether a wife could recover for the loss of the consortium of her husband (we use consortium as including 'society,' which, in turn, includes affection, companionship, and conjugal rights) as a result of an injury to the husband by reason of the negligence of a third party. The court held that a wife could not maintain such an action and affirmed the judgment of the trial court in sustaining defendant's demurrer to the petition. We are of the view that the majority opinion in the Bernhardt case is clearly erroneous and manifestly wrong and should no longer be followed.

It was, as disclosed by the majority opinion (two judges dissented), the contention of the plaintiff-appellant in that case that since it has been held in Clow v. Chapman, supra, that the Married Women's Act permitted the wife to recover for the alienation of her husband's affections, it followed that she had a right to maintain an action for the 'injury sued for in this case,' which included the alleged loss of her husband's care, protection, consideration, aid, and society.

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