Page v. Winter

• Decision Date: 28 June 1962
• Docket Number: No. 17939,17939
• Court: South Carolina Supreme Court
• Parties: Amorite L. PAGE, Appellant, v. Joseph E. WINTER and Mary W. Winter, Respondents.

Page 570

126 S.E.2d 570

240 S.C. 516

Amorite L. PAGE, Appellant, v. Joseph E. WINTER and Mary W. Winter, Respondents.

No. 17939.

Supreme Court of South Carolina.

June 28, 1962.

Seigler & Seigler, Columbia, for appellant.

Nelson, Mullins, Grier & Scarborough, Columbia, for respondents.

LEGGE, Acting Justice.

Appellant brought this action to recover damages for loss of consortium resulting from personal injuries alleged to have been inflicted upon her husband through the negligent operation of an automobile owned by one of the respondents and being driven at the time by the other. Respondents demurred to the complaint upon the ground that it stated no cause of action recognized or existing under the laws of this state. Appeal is from an order sustaining the demurrer.

Recovery by the wife for loss of consortium resulting from negligent misconduct of a third person was not permitted at comon law. 27 Am.Jur. Husband and Wife, Sections 513, 514; 41 C.J.S. Husband and Wife § 404. In Hitaffer v. Argonne Co. (1950), 87 AppD.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, the court, acknowledging the existence of this rule and unanimous adherence to it in every jurisdiction in this country in which it had been challenged, repudiated it as unjust, founded on specious reasoning, and demonstrably undesirable. That decision is a forceful and appealing argument against the discriminatory rule of the common law which in negligence cases permits one spouse to recover for loss of consortium but denies that right to the other. It has been reviewed by the courts of many states. A small minority have followed its doctrine; most have refused to do so for the same reason that compels our rejection of it: that it is the function of the legislature, not the courts, to make, amend or repeal laws. Cf. Ripley v. Ewell (Fla. 1952), 61 So.2d 420; Nickel v. Hardware Mutual Casualty Co. (1955), 269 Wis. 647, 70 N.W.2d 205; Coastal Tank Lines v. Canoles (1955), 207 Md. 37, 113 A.2d 82; Deshotel v. Atchison, T. & S. F. R. Co. (1958), 50 Cal.2d 664, 328 P.2d 449; Smith v. United Construction Workers (1960), 271 Ala. 42, 122 So.2d 153.

It is not for this court to repudiate the common law rule because we may think it illogical or undesirable. We do not have the right 'to repeal, alter, modify, or change the law of the land, even when it plainly appears that the law in force may be wrong.' O'Hagan v. Fraternal Aid Union, 144 S.C. 84, 141 S.E. 893, 57 A.L.R. 397.

Appellant presses here the same argument that the court made in Hitaffer v. Argonne Co., supra, viz.: that the right of the wife to maintain an action such as this for loss of consortium existed at common law, her inability to assert it being due to the disability of coverture; and that the passage of the Married Women's Property Act simply removed that disability, thus rendering available to her a right that had always existed. We find ourselves unable to agree with this contention. If such a right had existed under the common law the wife could have maintained the action prior to the Married Women's Property Act by simple joinder of the husband. Best v. Samuel Fox & Co. (England, 1951), 2 K.B. 639, as quoted in Coastal Tank Lines v. Canoles, supra.

Sine there has been no legislative action in this state relating to the matter, we must be governed by the policy of the common law, which denies to the wife the right to maintain an action, based on negligence, for loss of consortium.

'It is often the function of the courts by their judgments to establish public policy where none on the subject exists. But overthrow by the courts of existing public policy is quite another matter. That its establishment may have resulted from decisional, rather than statutory, law, is in our opinion, immaterial. Once firmly rooted, such policy becomes in effect a rule of conduct or of property within the state. In the exercise of proper judicial self-restraint, the courts should leave it to the people, through their elected representatives in the General Assembly, to say whether or not it should be revised or discarded.' Rogers v. Florence Printing Co., 233 S.C. 567, 106 S.E.2d 258.

Affirmed.

TAYLOR, C. J., and MOSS, J., concur.

LEWIS and BUSSEY, JJ., dissent.

BUSSEY, Justice (dissenting).

I regret that I cannot concur in the opinion prepared by Mr. Justice Legge in this case, and as the issue presented on appeal is one of great importance, I feel obligated to state my wiews thereabout.

The complaint in this action alleges that as a result of the gross negligence, willfulness and wantonness of the defendants, the husband of the plaintiff was seriously and permanently injured causing him to be totally disabled, and that the husband's incapacity is of a permanent nature, as a result of which the plaintiff has been deprived of the consortium of her husband, including his assistance and aid in maintaining and supporting the household and has been deprived of his society, comfort, companionship and husbandly affection, and his help in the care and management of their three minor children, for which damages to her right of consortium she seeks to recover. Respondents demurred to the complaint upon the ground that it stated no cause of action recognized or existing under the laws of this State, and the appeal here is from the order sustaining the demurrer.

It is well settled in this State that a wife, in at least some instances, is entitled to recover damages arising from an intentional violation of her right to the consortium of her husband. Simply stated, the issue raised by this appeal is whether a wife has the right to recover for the tortious, though not intentional, invasion of the same right.

It is, of course, not the function of this court to make, amend or repeal laws, that function being left to the legislature, and I would not knowingly be a party to the usurpation of the legislative power by this court.

The question before us is not whether this court shall legislate, but whether the complaint alleges a cause of action under the existing law of the State of South Carolina. To merely state that there is neither a specific statute authorizing, nor a common law case precedent allowing a recovery by the wife in a case such as this, is not at all determinative of the question. It is often asserted, without the citation of any authority that the common law of England denied the right of recovery to a wife in such a case. No case has been cited and research on my part has not found a case from the English courts which has even passed upon the issue, let alone decided it, one way or the other, in whole or in part, until the decision in Best v. Samuel Fox & Co. (England, 1952) 2 K.B. 639, which will hereinafter be more fully discussed.

A number of American courts have considered the precise issue before us and, prior to the year 1950, it is clear that the weight of American authority was against the contention of the appellant here. Such American authority, however, is at most only persuasive authority to be weighed and considered by this court, if we need to resort to persuasive authority to determine the issue herein. In my view, we do not need to resort to persuasive authority and can well decide the issue before us strictly on the existing law in South Carolina.

Admittedly, we are without the benefit of any precise precedent laid down by this court, and we are without the benefit of any statute which specifically grants or prohibits to the wife a cause of action for the loss of consortium of her husband under the facts and circumstances alleged in the complaint.

In arriving at a correct conclusion, we have to consider not only the precedents but the principles of the common law, the effect, if any, of our Constitution, and statutes on the common law of England, and of course the previous decisions of this court. When all of these are considered together, I cannot help but arrive at the conclusion that the complaint here states a cause of action under the existing law of South Carolina, and that the demurrer should have been overruled.

In defining the common law it is stated in 11 Am.Jur. 154:

'It is the system of rules and declarations of principles from which our judicial ideas and legal definitions are derived. The common law is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs; on the contrary, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. Its development has been determined by the social needs of the community which it serves. In other words, the common law is the legal embodiment of practical sense. It is a comprehensive enumeration of principles sufficiently elastic to meet the social development of the people. Its guiding star has always been the rule of right and wrong, and in this country its principles demonstrate that there is in fact, as well as in theory, a remedy for all wrongs. The capacity of common law for growth and adaptation to new conditions is one of its most admirable features. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.'

In 1712 this State (Rev.St.1872, c. 146, Sec. 10) adopted the principles of the common law of England in the following language:

'All and every part of the common law of England, where the same is not altered by this act or inconsistent with the Constitution, customs and laws of this state, is hereby continued in full...