Rodriguez v. Bethlehem Steel Corp.

• Citation: 110 Cal.Rptr. 692,35 Cal.App.3d 298
• Court: California Court of Appeals Court of Appeals
• Decision Date: 13 November 1973
• Parties: Mary Ann RODRIGUEZ, Plaintiff and Appellant, v. BETHLEHEM STEEL CORPORATION, a Corporation, et al., Defendants and Respondents. Civ. 40818.

Page 692

110 Cal.Rptr. 692

35 Cal.App.3d 298

Mary Ann RODRIGUEZ, Plaintiff and Appellant, v. BETHLEHEM STEEL CORPORATION, a Corporation, et al., Defendants and Respondents.

Civ. 40818.

Court of Appeal, Second District, Division 5, California.

Nov. 13, 1973.

For Opinion on Hearing see, 115 Cal.Rptr. 765, 525 P.2d 669.

Ned Good, Los Angeles, for plaintiff and appellant.

Lillick, McHose, Wheat, Adams & Charles, Gordon K. Wright, Kenneth R. Chiate, Los Angeles, for defendant and respondent Bethlehem Steel Corp.

Schell & Delamer, Martin A. Yester, Ralph D. Kirwan, Los Angeles, for defendant and respondent Norman Engineering Co.

Waters, McCluskey & Corcoran, Los Angeles, for defendant and respondent, McDonnell Douglas Corp.

Lester W. Miller, Long Beach, for defendant and respondent H. H. Robertson Co.

KAUS, Presiding Justice.

Richard Rodriguez and his wife Mary Anne Rodriguez, the appellant herein, filed a first amended complaint for damages in September, 1971. The various causes of action set forth arose out of allegedly very serious injuries suffered by Richard, the husband, on September 21, 1970. The complaint consists of one cause of action alleged on behalf of Richard. He claims damages for personal injuries, past and future medical expenses and past and future loss of earnings and earning capacity.

A second cause of action, pleaded only by Mary Anne, the wife, claims damages to her for loss of consortium, loss of Richard's services and loss of her own earnings. This last item of claimed damages is alleged to have resulted from the fact that the injuries to Richard made it necessary for Mary Anne to render 'medical and nursing type and supportive type care to her husband.'

The respondents to this appeal filed general demurrers to Mary Anne's cause of action. ¹ All demurrers were sustained without leave to amend. Eventually a judgment of dismissal was entered against Mary Anne. (Code Civ.Proc. § 581, subd. 3.) We understand that Richard's case is scheduled for trial in the near future.

Discussion

Although appellant's counsel, both below and here, attempts to present this case as one involving the question of 'equal rights for wives,' we do not see it that way. As far as we are concerned we consider it a foregone conclusion (Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225) that if the law grants a remedy to the husband when the wife is hurt, a similar remedy must be granted to the wife, when the husband is the injured party. Since this case does not involve an interspousal tort (Civ.Code, § 5109) and since the parties are not separated (Civ.Code, § 5126), any recovery by either Richard or Mary Anne will be their community property. (Civ.Code, § 5110.) ²

With these thoughts in mind, we examine the three elements of damages pleaded.

We emphasize at the outset that there is a vast difference between the first of these elements--Mary Anne's loss of consortium--and the other two: regardless of whether damages to compensate for the loss of consortium will become community property, the loss is very much Mary Anne's own and is in no way included in the damages Richard seeks to recover for injury to himself. On the other hand Mary Anne's alleged loss of Richard's services and her loss of earning capacity are items which Richard will be able to recover as part of the cause of action which remains untouched by the judgment appealed from.

Loss of Consortium

Counsel invites us to overrule Deshotel v. Atchison T. & S. F. Ry. Co., 50 Cal.2d 664, 667-669, 328 P.2d 449 and West v. City of San Diego, 54 Cal.2d 469, 475-478, 6 Cal.Rptr. 289, 353 P.2d 929, holding, respectively, that neither the wife (Deshotel) nor the husband (West) can recover for the bundle of non-economic detrimental consequences resulting from injury to the other, known as 'loss of consortium.' In spite of counsel's eloquent exhortations to the contrary, we must hold that it is up to the Supreme Court to qualify or overrule its decisions. We say this in full recognition of Mary Anne's argument that several Supreme Court cases since Deshotal and West can be read as undermining the rational of those holdings.

Loss of Husband's Services

Clearly, if the husband is as seriously injured as counsel informs us, there are many services of an economic nature which he rendered to the community which he can no longer render. The loss of these services is, of course, compensable, although he received no money for rendering them. As long ago as 1900, in Martin v. Southern Pacific Co., 130 Cal. 285, 62 P. 515, the Supreme Court held that '[i]f the domestic services voluntarily rendered by the wife obviate the necessity of employing other assistance, the amount of the community property is thereby enhanced in the amount that would be required for such assistance; and by the deprivation of such services the community property suffers a corresponding damage.' ( Ibid., pp. 286-287, 62 P. p. 515.)

We have no doubt that what is true for cooking and scrubbing floors is equally true with respect to lawn mowing, general maintenance work around the house, and helping with the dishes. There is however, no discernible reason why the community should be able to claim these damages twice. ³ No such double recovery is permitted. (Robbins v. Roques, 128 Cal.App. 1, 6-7, 16 P.2d 695.)

Wife's Loss of Earnings

Here the claim is that Mary Anne was 'unable to work and earn money' because Richard's injuries made it necessary for her to devote herself to being, in effect, his nurse.

Again we point out that no question of equal protection is presented. We continue to assume that any damages Richard could recover if Mary Anne were injured, are recoverable by her in this action based on injuries to Richard. Thus if there were any precedent permitting Richard to recover damages over and above those which Mary Anne could recover as the injured plaintiff, she would be entitled to the benefit of such a holding in this case. There is, however, no such precedent.

No facts are pleaded which would indicate that the recovery to the community is going to be one cent more if the damages incurred because of Richard's need for nursing services are considered as having been suffered because Mary Anne had to quit her job, rather than if they are viewed in the more conventional fashion as having...