Roseberry v. Starkovich

• Decision Date: 25 November 1963
• Docket Number: No. 7272,7272
• Citation: 387 P.2d 321,73 N.M. 211,1963 NMSC 201
• Parties: Sarah ROSEBERRY, Plaintiff-Appellant, v. W. A. STARKOVICH, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 321

387 P.2d 321

73 N.M. 211

Sarah ROSEBERRY, Plaintiff-Appellant, v. W. A. STARKOVICH, Defendant-Appellee.

No. 7272.

Supreme Court of New Mexico.

Nov. 25, 1963.

Dolan & Clear, Warren F. Reynolds, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Joseph J. Mullins, Albuquerque, for appellee.

MOISE, Justice.

May a married woman recover damages for her loss of consortium resulting from the negligent injury to her husband by another?

In order that the meaning of the term 'consortium' be understood, and because there has been a great deal of misunderstanding concerning it, we state the definition given in Black's Law Dictionary (4th Ed.):

'Conjugal fellowship of husband and wife, and the right of each to the company, co-operation, affection and aid of the other in every conjugal relation.'

At the outset we would point out that the question is one of first impression in New Mexico. In Birchfield v. Birchfield, 29 N.M. 19, 217 P. 616, we recognized the right in a wife to sue for damages suffered through the intentional alienation of a husband's affections in the following language:

'The loss of the society, companionship, fellowship, comfort, conjugal affections and support of the husband, when caused by any third person maliciously invading the hallowed precincts of the home, and without justification severing the ties which bind the husband and wife together, from which a separation flows, is tortious, and the person who does so may be required to respond in damages. * * *'

This case was shortly followed by Murray v. Murray, 30 N.M. 557, 240 P. 303, where a judgment in favor of a wife whose husband's affections had been intentionally alienated was affirmed. In this latter case we find the following:

'Consortium means much more than the mere sexual relation, and consists also in that affection, companionship, conjugal love, fellowship, and assistance so necessary to a successful marriage relation.'

In the instant case, it is alleged by the plaintiff wife that while the husband was employed by Phillips Petroleum Company as a uranium miner, and because of the negligence of defendant, a fellow-employee, the mine safety director, in allowing husband to enter the mine, husband was crushed beneath a large slab of rock so as to be rendered totally and permanently disabled, 'and by reason of paralysis, resulting from his injuries, he has become and will remain incapable of performing any of the functions of husband to the plaintiff.'

The trial court sustained a motion to dismiss, holding that in New Mexico 'the wife has no cause of action for the loss of her husband's consortium.'

In a previous case, Roseberry v. Phillips Petroleum Co., 70 N.M. 19, 369 P.2d 403, we held that the wife was barred by the provisions of our Workmen's Compensation Act from recovering from the employer for its alleged negligence, but that the Act provided no bar to an action for negligence against a fellow-employee of the husband. Because the question of the right to recover for loss of consortium by the wife was not presented to and passed on by the court below, we refused to express an opinion on the problem. After remand, the issue was directly passed upon, and we now have the problem squarely presented.

Whereas, we know that in the case of intentional or malicious injury to the wife's consortium, she may recover damages, Birchfield v. Birchfield, supra; Murray v. Murray, supra, where the injury is the result of negligence, a different and difficult question is presented.

Prior to 1950, and the decision of the United States Court of Appeals of the District of Columbia in Hitaffer v. Argonne Company, Inc., 87 App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, except for a short period in which recovery for loss or injury to consortium through negligence was recognized in North Carolina, Hipp v. E. I. Dupont de Nemours & Co., 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873, overruled in Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889, and in Ohio, Griffen v. Cincinnati Realty Co., 27 Ohio Dec. 585, overruled in Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N.E. 204, L.R.A.1916E, 700, the courts uniformly denied such a right in the wife. 23 A.L.R.2d 1378, 1380. This was the rule at common law, and resulted largely from the common law concept that the wife was inferior to the husband, and her identity was merged into that of the husband. She could not sue in her own name. However, the husband being the superior party in the eyes of the law and entitled to the services of his wife, the courts generally recognized a right in him to recover for loss of her consortium when negligent injury to the wife had such result. This conclusion was explained by Blackstone in Vol. 3, Lewis's Edition, of his Commentaries, at page 1139, as follows:

'We may observe that in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in any thing during her coverture. * * *'

See also Prosser on Torts (2d Ed.) 703, 704, Sec. 104; 22 Mich.L.R. 1; 26 Harv.L.R. 74, for other reasons which have been advanced.

Dean Prosser and the writers of law review articles have been generally critical of the rule which in our enlightened era has preserved a right in a husband to recover for loss of consortium with his wife because of negligence, while at the same time denying recovery to the wife for the loss of consortium with her husband resulting from negligence. See Prosser on Torts (2nd Ed.) Sec. 104; 22 Mich.L.R. 1; 26 Harv.L.R. 74; 29 Ill.L.R. 460; 30 Colum.L.R. 651; 35 Ky.L.R. 220; 9 Ind.L.J. 182; 5 Cornell L.Q. 171; 39 Mich.L.R. 820; 39 Cornell L.Q. 761; 23 Cincinnati L.R. 108; 4 St.Louis U.L.J. 424.

Since Hitaffer v. Argonne Co., supra, a number of courts have broken away from the ranks of those denying recovery and have held the wife's right to be one cognizable by law. Brown v. Georgia-Tennessee Coaches, 88 Ga.App. 519, 77 S.E.2d 24; Cooney v. Moomaw (D.Neb.1953) 109 F.Supp. 448; Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480; Missouri Pacific Transportation Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41; Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669; Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227; Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184; Duffy v. Lipsman-Fulkerson & Co. (D.Mont.1961) 200 F.Supp. 71; Yonner v. Adams, 3 Storey 229, 53 Del. 229, 167 A.2d 717; Novak v. Kansas City Transit, Inc. (Mo.1963) 365 S.W.2d 539. See also Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407, and Mariani v. Nanni (R.I.1962) 185 A.2d 119, indicating approval of the rule.

Notwithstanding adherence to the rule as announced in Hitaffer v. Argonne Co., supra, by the very respectable group of courts cited above, a still larger number during the same period have refused to follow that case. Smith v. United Construction Workers, 271 Ala. 42, 122 So.2d 153; Jeune v. Del E. Webb Construction Co., 77 Ariz. 226, 269 P.2d 723; Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664, 328 P.2d 449; La Eace v. Cincinnati, Newport and Covington Ry., (Ky.1952) 249 S.W.2d 534; Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897; Lockwood v. Wilson H. Lee Co., 144 Conn. 155, 128 A.2d 330; Ripley v. Ewell (Fla.1952) 61 So.2d 420; Coastal Tank Lines v. Canoles, 207 Md. 37, 113 A.2d 82; Simpson v. Poindexter, 241 Miss. 854, 133 So.2d 286, 134 So.2d 445; Snodgrass v. Cherry-Burrell Corp., 103 N.H. 56, 164 A.2d 579; Larocca v. American Chain & Cable Co., 23 N.J.Super. 195, 92 A.2d 811, affd. 13 N.J. 1, 97 A.2d 680; Don v. Benjamin M. Knapp, 306 N.Y. 675, 117 N.E.2d 128; Nelson v. A.M. Lockett & Co., 206 Okl. 334, 243 P.2d 719; Neuberg v. Bobowicz, 401 Pa. 146, 162 A.2d 662; Garrett v. Reno Oil Co. (Tex.Civ.App.1954) 271 S.W.2d 764; Ash v. S. S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118; Nickel v. Hardware Mutual Cas. Co., 269 Wis. 647, 70 N.W.2d 205; Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898.

It is readily apparent that the majority adhere to the rule denying the wife a recovery. A variety of reasons are advanced for doing so. However, none deny the logic of the writers to the effect that in our present day society in which the wife is an equal partner with the husband, and neither a servant nor a chattel, no discernible reason exists for allowing the husband recovery while persisting in denying relief to the wife. Some courts have met the problem by denying recovery to the wife, while suggesting that the basis for allowing recovery to the husband is outworn, and a preferable solution would be to deny it to both, rather than to extend the right to the wife. See Kronenbitter v. Washburn Wire Company, supra; Neuberg v. Bobowicz, supra.

We enter upon a consideration of the problem and its proper solution unhampered by prior binding decisions of this court. So far as we have discovered, we have never been called upon to consider the right of either the husband or wife to recover for negligent injury to or loss of consortium. We do not overlook Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149, and Hebenstreit v. Atchison, Topeka & Santa Fe Railway Co., 65 N.M. 301, 336 P.2d 1057. We perceive of nothing which should interfere with a completely objective and logical consideration of the problem in the light of today's concepts.

We have already referred to the cases which upheld the right of a wife to sue for alienation of...