Rush v. Great American Ins. Co.

• Decision Date: 05 March 1964
• Citation: 376 S.W.2d 454,17 McCanless 506,213 Tenn. 506
• Court: Tennessee Supreme Court
• Parties: Charleen RUSH, Plaintiff in Error, v. GREAT AMERICAN INSURANCE COMPANY et al., Defendants in Error. 17 McCanless 506, 213 Tenn. 506, 376 S.W.2d 454

Page 454

376 S.W.2d 454

Charleen RUSH, Plaintiff in Error, v. GREAT AMERICAN INSURANCE COMPANY et al., Defendants in Error.

17 McCanless 506, 213 Tenn. 506, 376 S.W.2d 454

Supreme Court of Tennessee.

March 5, 1964.

H. Tom Kittrell, Nashville, for plaintiff in error.

Charles L. Cornelius, Jr., George H. Armistead, Jr., Nashville, for defendants in error.

WHITE, Justice.

On or about the 26th day of June, 1961, the plaintiff in error's husband, Richard Rush, was riding on and driving a motor scooter on a highway in Davidson County, Tennessee, when it collided with an automobile belonging to the Great American Insurance Company and being driven by Walter Harry Ostertag. It is alleged that Ostertag, at that time, was on the business and purpose of said insurance company.

Mrs. Rush brought this suit seeking to recover damages for loss of consortium of her husband who received severe personal injuries in the accident. The defendants demurred alleging that there is no warrant in law for the maintenance of such action as the plaintiff brought because she could not maintain such suit at common law and that there is no statute in Tennessee permitting its maintenance. The trial court sustained the demurrer and dismissed the case.

In the appeal now before us there is a single assignment of error which is to the effect that the trial court committed error in sustaining the demurrer and dismissing the suit.

The brief filed on behalf of the plaintiff in error states that the only question raised by the appeal is whether or not Charleen Rush, the wife, has a right to maintain a suit for the loss of consortium of her husband resulting from his injuries due to the negligence of the third party.

It is alleged in the declaration that the plaintiff's husband was seriously and permanently injuried in and about his entire body and that 'he received a severe injury to his groin and pelvic regions, in fact, the pubis, sacrum, and coccyx bones of his pelvic region were broken' and his reproductive organs were damaged to such an extent that there is 'great doubt as to his virility' and that as a result of said injuries to said husband she 'has suffered loss of services of her husband, and she has lost the consortium of her husband, and that these injuries are such that her losses are grave and far reaching.'

While the exact question now under consideration has never been considered by us directly, we have considered it obliquely.

The case of Railroad Co. v. Bentz, 108 Tenn. 670, 678, 679, 69 S.W. 317, 58 L.R.A. 690 (1902), was reversed because the trial judge charged the jury 'to look to the loss of comfort and enjoyment' sustained by her from the negligent fatal injury to her husband in determining the amount of damages to be allowed the widow. Comfort and enjoyment are elements or parts of the general meaning and understanding of the term consortium.

We have another case decided by this Court to the effect that a widow or next of kin has never been allowed to recover damages for grief or mental anguish, or as solatium, that is, for the loss of moral aid, comfort, counsel and companionship of one who lost his life by negligent injury. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967 (1902).

These two decisions have been referred to with approval in opinions by our Court of Appeals in the cases of Potts v. Leigh, 15 Tenn.App. 1, 8 (1931), and Johnson v. Faucette, 15 Tenn.App. 326 (1932).

The importance of the question presented in the instant case has caused us to make a detailed independent research of all of the authorities and we believe that we have read every reported decision on the points in issue.

In the exhaustive brief filed by plaintiff in error the case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R. 1366 (1950), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, is relied upon as the leading authority for the position that the wife may, in modern times, maintain an action for loss of consortium.

In 27 Am.Jur. at 114, it is stated that the wife, in the absence of a statute, does not have the right to maintain a suit for loss of consortium caused by a mere negligent injury inflicted upon the husband. Her loss of consortium resulting from negligence is too remote and indirect to permit her to recover therefor, and hence, it is distinguishable from loss of consortium resulting directly from a wrongful act, as where her husband is intentionally and wrongfully enticed, seduced, or forced away from her.

In 41 C.J.S. Husband and Wife Sec. 404, p. 900 it is said that in the absence of a statute, a wife has no cause of action for the loss of consortium in consequence of personal injuries inflicted on her husband. There are a number of cases cited in the notes in support of this statement.

A wife cannot recover damages on account of personal injuries to her husband whereby she sustained loss of support and loss of consortium. 2 Cooley, Torts 16 (4th ed. 1932).

In 3 Restatement, Torts 496, it is said:

'A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests or for any expense incurred in providing medical treatment for her husband.'

The common law never recognized any right on the part of the wife to the services of her husband. As the social and legal inferior she could not require him to work for her, and she had at least no common law remedy for deprivation of his society, intercourse and affections. He was legally bound to provide for her and she was entitled to his support; but any injury to him did not terminate that obligation, and the tort-feasor was liable to the husband himself for any loss of earning power. It followed that there could be no additional recovery on behalf of the wife, even after the Married Woman's Act had removed her procedural disabilities and permitted her to sue in her own name. Prosser, Torts 703, 704 (2d ed. 1955).

In 1 Harper & James, Torts 641 (1956), it is stated that the authority against the allowance of recovery is almost unanimous, but the author does cite the Hitaffer case, supra, from the District of Columbia.

In our consideration of the instant case the Hitaffer case is much less persuasive because of the fact that is was decided in the District of Columbia where the courts are not bound, as we are, by the common law. As was said in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 'There is no federal general common law.' In addition, Hitaffer involved the construction of a workmen's compensation statute, a matter not here involved.

In 1954 the United States Circuit Court of Appeals for the Ninth Circuit dismissed a wife's action brought under the Federal Tort Claims Act to recover for loss of consortium allegedly due to negligent injury to her husband resulting from an automobile injury in the State of California.

The court said that it had been urged to apply the law of the District of Columbia and not that of California to the case under consideration. In reply the court said:

'In the face of the fact that the law elsewhere is so nearly unanimous against a recovery such as that here sought, we find ourselves unable to say and we are unwilling to hold that the law of California at present recognizes the right of a wife to bring such an action.' Filice v. United States, 9 Cir., 217 F.2d 515 (1954).

According to our investigation the ground for recovery by the husband at the common law was that he had lost the services of his wife to perform her household duties such as cooking meals, taking care of the children and keeping the house, etc., and finally, it was said that he also was entitled to her society, her consortium, and out of that, within its general ambit, it was held that he was entitled to her love, affection, companionship, etc., all welded into a conceptualistic unity.

The courts throughout the years have experienced great difficulty in defining and limiting the meaning of consortium and on occasions it has been said that it embraces 'intangibles' and 'indefinables.'

Within recent times the text writers have generally agreed that the wife should be permitted a recovery for loss of the consortium of her husband. They argue that to allow such an action by the husband and at the same time deny it to the wife is inconsistent with the modern statutes giving married women equal rights to sue with their husbands and that the wives have an equal interest in consortium--whatever the term may include--with their husbands.

Until the decision in the Hitaffer case the text writers stood alone in their view.

A few jurisdictions have followed Hitaffer, but most of them continue to deny the wife's claim.

In 23 A.L.R.2d 1389 it is said that while a wife may have an action for loss of her husband's consortium where the invasion of the right is intentional, and even though the husband's right to such an action is recognized where the injury to the wife is a result of the negligence of the defendant, the great weight of authority denies to the wife a right of action for loss of consortium resulting from a negligent injury to her husband.

The 1964 Supplement to the annotation in 23 A.L.R.2d, supra, refers to additional cases pro and con on the subject. Some of the reasons given for recognizing the right of action have been set out above and some of the reasons for denying recovery are: (1) that the injury to the wife is indirect or too remote; (2) that a double recovery for one injury would or could result; (3) that the wife has no common law or statutory right to the services of her husband; and, finally, that the married women's act did not give to them express authority to maintain such an action.

The dissenting opinion written by Chief Justice Schaefer in the case of Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86...