Ross v. Cuthbert

• Citation: 397 P.2d 529,239 Or. 429
• Parties: Marjorie ROSS, Appellant, v. Robert Dean CUTHBERT, Respondent.
• Decision Date: 23 December 1964
• Court: Supreme Court of Oregon

Page 529

397 P.2d 529

239 Or. 429

Marjorie ROSS, Appellant, v. Robert Dean CUTHBERT, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 2, 1964.

Decided Dec. 23, 1964.

Bernard Jolles, Portland, argued the cause for appellant. With him on the brief were Franklin, Olsen, Bennett & Des Brisay, Portland.

James B. Bedingfield, Jr., Coos Bay, argued the cause for respondent. With him on the brief were Bedingfield, Grant & Bedingfield, Coos Bay.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN, and DENECKE, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Marjorie Ross, from a judgment based on a verdict for the defendant, Robert Dean Cuthbert. Plaintiff seeks damages for her loss of consortium as a result of injuries inflicted upon her husband through the alleged negligence of defendant in the operation of his automobile.

On August 6, 1962, about 10:00 a. m., plaintiff's husband, while driving a pickup truck, stopped in the left lane facing north on Bayshore Drive in Coos Bay and awaited an opportunity to make a left turn into a service station. While he was so stopped, his car was struck from the rear by defendant's automobile which was being operated in the same direction and in the same lane of travel. The testimony is conflicting as to whether, plaintiff's husband signalled his intention to turn left or to stop. Plaintiff's husband did not give a hand signal but relief upon his brake and signal lights. He testified, based upon an indicator light on the dash panel in the cab of his pickup truck, that he did signal his intention to make a left turn. Defendant testified that he saw no signal of an intention to turn or stop and that if such signals were given they were hidden by a coating of mud which covered the tail lights and rear of the pickup. Visibility was clear. Defendant saw the pickup stopped in front of him when he was forty to forty-five yards to the rear of it. He removed his foot from the gas pedal and slowed down. When defendant reached a point approximately ten yards from the rear of the pickup he applied his brakes but was unable to stop, and the two vehicles collided.

Plaintiff's husband is sixty-three years of age, and prior to the time of the accident was able to provide aid, society adn comfort to his wife in a normal fashion. In the accident the husband suffered a straining of and injury to the soft tissues of his neck (whiplash injury) which resulted in pain, soreness and limitation of motion. The record contains expert testimony which indicates that plaintiff's husband has suffered a permanent loss of twenty per cent of the function of his neck and that such an injury affects the other bodily functions in general and sexual activity in particular. Plaintiff testified that subsequent to the accident her husband was unable to perform the household chores and duties that he had before and that he was unable to participate in the couple's marital relations as he previously had done.

The complaint alleged that the defendant was negligent in failing to keep his vehicle under control, in failing to maintain a proper lookout, in operating his vehicle at an excessive speed, in following too closely, and in failing to stop or turn so as to avoid the accident. Defendant denied the allegations and alleged as an affirmative defense that plaintiff's husband was guilty of contributory negligence in failing to signal his intentions and in failing to keep his signal lights free from mud and dirt which rendered them impossible of observation.

Plaintiff assigns as error the order of the trial court overruling her demurrer to defendant's separate answer and affirmative defense. The issue is: does the contributory negligence of one spouse operate as a bar to the other spouse's action for loss of consortium. The precise question thus presented is one of first impression in our state

It is clear that a wife has an action for loss of consortium. ORS 108.010 and cf. 23 A.L.R.2d 1378; 86 A.L.R.2d 1184. Her right of action is measured by and subject to any defenses available in a husband's action for redress of the same harm. Ellis v. Fallert (1957), 209 Or. 406, 307 P.2d 283; Smith v. Smith (1955), 205 Or. 286, 287 P.2d 572; Kinney v. Southern Pacific Co. (1962), 232 Or. 322, 375 P.2d 418.

All cases from American jurisdictions have been unanimous in allowing the husband's or wife's contributory negligence to be pleaded and proved as a bar to the other spouse's action for loss of consortium. Chicago, B., and Q. R. Co. v. Honey (8 Cir., 1894), 63 F. 39, 26 L.R.A. 42; Callies v. Reliance Laundry Co., 188 Wis., 376, 206 N.W. 198, 42 A.L.R. 712; and see 41 C.J.S. Husband and Wife § 401c, p. 895; and 27 Am.Jur. 108, Husband and Wife, § 507 and cases cited therein; 2 Restatement of Torts 1280, § 494. On the other hand, commentators and modern text writers have been equally unanimous in condemning the reasoning and result reached by the courts. Prosser, Torts, 3rd ed., 1964, p. 914; 1, 2 Harper and James, The Law of Torts, 640, 1278; Gilmore, Imputed Negligence, 1921, 1 Wis.L.R. 193, 203, 211; case note, 1932, 80 U.Pa.L.R. 1128, 1130; Gregory, Vicarious Responsibility and Contributory Negligence, 1932, 41 Yale L.J. 831; case note, 1933, 13 B.U.L.R. 725; Gregory, The Contributory Negligence of Plaintiff's wife or child in an Action for Loss of Services, etc., 1935, 2 U.Chi.L.R. 173; James, Imputed Contributory Negligence, 1954, 14 La.L.R. 340, 353; Heniss, Imputed Contributory Negligence, 1959, 26 Tenn.L.R. 531, 540, 541; and cf. 1 Restatement of Torts 1267, Sec. 485. Older, nineteenth century, text writers stated emphatically that the defense would apply at common law. I Shearman and Redfield, Negligence, Rev. ed. 221, 337; Beach, Contributory Negligence, 3rd ed. re., 1899, pp. 166, 167.

In the analogous situation of a parent's suit for loss of services of his child due to defendant's negligence, it has been stated or assumed, without discussion, that the child's contributory negligence, if the child is of sufficient age to be capable of negligent conduct, will operate as a bar. Whang v. Hong (1955), 206 Or. 125, 290 P.2d 185, 291 P.2d 720; Boyd v. Portland Electric Co. (1901), 40 Or. 126, 66 P. 576, 57 L.R.A. 619; Macdonald v. O'Reilly (1904), 45 Or. 589, 78 P. 753.

The following is quoted from Harper and James, The Law of Torts, page 640:

'It is held that since the husband's action for loss of consortium is derived from the wife's action, a valid defense to her action will also bar his. Thus the wife's contributory negligence will not only bar a recovery by her but it will also bar him. This has certain illogical aspects to it. If there are different interests invaded by different wrongs, it might be though irrelevant to the husband's cause of action that the wife's has been barred by her contributory negligence. If we are to accept the principle of the Restatement of Torts, negligence is not 'imputed' to a plaintiff unless his relationship to the person whose negligence is involved is such as to make him liable for that person's negligence if it resulted in injury to a third person. Here, the husband is not in modern law liable for his wife's torts and accordingly should not be barred from recovery against a third person by her negligence. To assign, as a reason, the derivative character of his action is really begging the question since it does little more than to state the result in different language. And to state that there is but one cause of action which is 'divided' between the wife and husband is not accurate since the nature of the husband's interest is different and distinct from the wife's. In any event, the rule appears to be settled and there seems no disposition on the part of courts to change it. Of course the husband's negligence, if it contributed to his wife's injury, will bar a recovery by him although it will not affect her right to recover from the negligent third person for her own injuries.'

Thus, the courts and the texbook writers are in sharp disagreement upon the issue as to whether or not a husband's contributory negligence should bar a wife from recovery in a consortium action such as this which she instituted against an alleged tort feasor whose negligence combined with the husband's in the infliction of injury upon him. The courts are unanimous in holding that the husband's contributory negligence bars the wife. The writers are unanimous that it should not.

Symmetry in the law or, termed otherwise, logical consistency is, of course, highly desirable; but of paramount importance is justice. It is apparent that the courts do not believe that a wife should be permitted to recover if her husband's injuries were the result in part of his contributory negligence. Notwithstanding the writings of the textbook authorities, the courts do not believe that a judgment in the wife's favor under such circumstances would be just. Contributory negligence enables the litigant to take all or gives him nothing.

It is apparent that the logic of the textbook writers has not persuaded the courts that wives should be permitted to recover from an alleged tort feasor the entire amount of damages when the husband's contributory negligence was responsible for some of the amount.

It may be that the operation of the rule of contributory negligence which gives the victor all or nothing is a weakness in the textbook writers' logic. Evidently the courts view with disfavor a contention that a third party should pay all of the damages when the husband's own negligence was responsible for some of them. Or, ir may be that the operation of the doctrine of consortium is subject to criticism when it permits a family to team up against a third party and allow the wife to recover in her name even though her husband, who drove the car, cannot recover. The wife and the husband are, of course, not strangers to each other. In the quietude of their abode...