Schreiner v. Fruit, No. 1949

CourtSupreme Court of Alaska (US)
Writing for the CourtBefore RABINOWITZ; RABINOWITZ
Citation519 P.2d 462
Decision Date25 February 1974
Docket NumberNo. 1949
PartiesKatherine SCHREINER, Appellant, v. Clay FRUIT and Equitable Life Assurance Society of the United States, Appellees.

Page 462

519 P.2d 462
Katherine SCHREINER, Appellant,
v.
Clay FRUIT and Equitable Life Assurance Society of the
United States, Appellees.
No. 1949.
Supreme Court of Alaska.
Feb. 25, 1974.

Sandra K. Saville, of Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for appellant.

Page 463

Sigurd E. Murphy, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee Fruit.

Robert J. Dickson, of Atkinson, Conway, Young, Bell & Gagnon, Anchorage, for appellee Equitable.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, and FITZGERALD, JJ.

OPINION

RABINOWITZ, Chief Justice.

The principal issue we are called upon to decide in this appeal is whether a wife has an independent right to sue for loss of consortium due to negligently inflicted injury to her husband.

Katherine Schreiner's husband sustained serious injuries rendering him permanently and totally disabled as a result of the negligence of Appellee Clay Fruit, an employee of Appellee Equitable Life Assurance Society of the United States. As a result of the accident, Mr. Schreiner filed suit against Fruit and Equitable in superior court. After a trial by jury, judgment was entered in Mr. Schreiner's behalf in the amount of $769,467.22. Appeal was taken to this court and the judgment affirmed. 1

Subsequent to the entry of judgment in her husband's suit, Mrs. Schreiner sued Fruit and Equitable for the loss of consortium of her husband resulting from the injuries sustained in the same accident that was the subject of his suit. Equitable then filed a motion for judgment on the pleadings, claiming that Katherine Schreiner had failed to state a claim upon which relief could be granted. Clay Fruit joined in this motion. In support of the motion Fruit and Equitable argued that Alaska law did not recognize the right of a wife to sue for loss of consortium based on a negligently inflicted injury to her husband. Even if such an action were determined to be allowable, Equitable contended that the claim for loss of consortium by the wife must be joined with the husband's claim based on the injury, and since Mrs. Schreiner had failed to do so, the motion for judgment on the pleadings should be granted. The superior court granted the motion on the ground that a wife does not have an independent claim for loss of consortium. We hold that this was error and that a wife has a right to sue for loss of consortium due to a negligently inflicted injury to her husband.

This is a case of first impression in the State of Alaska. The common law, which is in force in Alaska, 2 recognized the right of the husband to sue for any interference with his interest in his wife, but failed to recognize the right of a wife to sue for loss of consortium. Guy v. Livesay, 79 Eng.Rep. 428 (1619). Denial of relief to the wife was based on outmoded concepts that the wife possessed such an inferior interest in the marital relationship that there could be no injury to such interest that deserved compensation.

At common law, the husband at the time of marriage received all of his wife's personal property, money and chattels and became entitled to his wife's services; if he lost these services through the acts of another, that person had to respond in damages. 3 The husband was allowed to sue for loss of consortium both because of the wife's status as a chattel of her husband, and because of her inability to bring suit in her own behalf for injuries she sustained. 4 In general, married women

Page 464

were considered to lack a legal identity and were thus precluded from owning property, making contracts, or bringing suit on their own behalf.

The Supreme Court of Michigan described the situation in the following manner:

This, then, is the soil in which the doctrine took root; the abject subservience of the wife to the husband, her legal nonexistence, her degraded position as a combination vessel, chattel and household drudge . . .. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227, 230 (1960).

The landmark case acknowledging that a woman has a separate and independent cause of action for loss of consortium is Hitaffer v. Argonne Co. 5 The Hitaffer opinion signified the beginning of a change in state court decisions. 6

In Hitaffer the court said:

The actual injury to the wife from loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation . . . of a legal right arising out of the marriage relation . . .. As the wrongs of the wife are the same in principle, and are caused by acts of the same nature, as those of the husband, the remedy should be the same. 7

The married woman's common law disability to bring suit was ended by a series of acts referred to as the Married Woman's Acts. 8 The requirement that suit be brought by the husband when the wife was injured in order that redress be available was thereby ended. Nevertheless there remains some dispute as to whether Married Woman's Acts have any bearing on the question of the wife's right to sue for loss

Page 465

of consortium. The argument is that if the wife had no right to sue for loss of consortium at common law, then simply removing her disability did not create one. The following statement of the California court in Deshotel v. Atchison, Topeka & Santa Fe Railway Co. 9 is typical of the viewpoint that enactment of Married Woman's Acts did not create a right in the wife to sue for loss of consortium:

It is clear that the granting of relief to the wife for loss of consortium caused by negligent injury to her husband would constitute an extension of common law liability, and the courts are justifiably reluctant to depart from established limitations on recovery. 10

The Deshotel court went on to hold that the legislature is the more appropriate forum in which to decide the question of the right of a wife to sue for loss of consortium. 11 On the other hand, the Hitaffer court took the position that the wife did have a right to sue for loss of consortium, but was denied a remedy by her disability to bring suit. 12 There is also authority that courts should establish the right to sue for loss of consortium, and not defer to the legislature, even if the court finds that such a right did not exist at common law. In Dini v. Naiditch 13 the court stated:

Inasmuch as the obstacles to the wife's action were 'judge invented,' there is no conceivable reason why they cannot be 'judge destroyed.' We find no wisdom in abdicating to the legislature our essential function of re-evaluating common-law concepts in the light of present day realities. (citation omitted)

A similar position was taken in Leffler v. Wiley 14 where it was observed that:

The courts should not perpetuate in the common law a discrimination that could not constitutionally be created by statute. 15

We are of the view that in the context of this litigation it would be inappropriate 78 S.D. 82, 98 N.W.2d 669 (1959). action in order to give recognition to the wife's right to sue for loss of consortium. 16 Although Fruit and Equitable argue that neither husband nor wife should have a claim for relief from loss of consortium, we decline to adopt this position. 17 A claim for relief for loss of consortium...

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40 practice notes
  • Burning Tree Club, Inc. v. Bainum
    • United States
    • Court of Appeals of Maryland
    • December 23, 1985
    ...the court held that to grant men but not women the right to sue for loss of consortium would be unconstitutional. Schreiner v. Fruit, 519 P.2d 462, n. 16 (Alas.1974). Under the Illinois equal rights provision, the Supreme Court of Illinois held that provisions under that state's marriage la......
  • Warwick v. State ex rel. Chance, No. 2712
    • United States
    • Supreme Court of Alaska (US)
    • March 25, 1976
    ...Chevron Oil Company v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971) quoted with approval in Schreiner v. Fruit, 519 P.2d 462, 466-67 (Alaska In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the dec......
  • American Export Lines, Inc v. Alvez, No. 79-1
    • United States
    • United States Supreme Court
    • May 12, 1980
    ...Columbia allow recovery by a wife or couple: Swartz v. United States Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974); Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974); Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972); Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41......
  • Hibpshman v. Prudhoe Bay Supply, Inc., No. S-1176
    • United States
    • Supreme Court of Alaska (US)
    • March 27, 1987
    ...(Alaska 1963) (interspousal immunity); Hebel v. Hebel, 435 P.2d 8, 9 (Alaska 1967) (parental immunity). Moreover, in Schreiner v. Fruit, 519 P.2d 462, 466 (Alaska 1974), we concluded that a wife or husband has a right to sue for loss of consortium caused by negligently inflicted injury to h......
  • Request a trial to view additional results
40 cases
  • Burning Tree Club, Inc. v. Bainum
    • United States
    • Court of Appeals of Maryland
    • December 23, 1985
    ...the court held that to grant men but not women the right to sue for loss of consortium would be unconstitutional. Schreiner v. Fruit, 519 P.2d 462, n. 16 (Alas.1974). Under the Illinois equal rights provision, the Supreme Court of Illinois held that provisions under that state's marriage la......
  • Warwick v. State ex rel. Chance, No. 2712
    • United States
    • Supreme Court of Alaska (US)
    • March 25, 1976
    ...Chevron Oil Company v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971) quoted with approval in Schreiner v. Fruit, 519 P.2d 462, 466-67 (Alaska In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the dec......
  • American Export Lines, Inc v. Alvez, No. 79-1
    • United States
    • United States Supreme Court
    • May 12, 1980
    ...Columbia allow recovery by a wife or couple: Swartz v. United States Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974); Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974); Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972); Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41......
  • Hibpshman v. Prudhoe Bay Supply, Inc., No. S-1176
    • United States
    • Supreme Court of Alaska (US)
    • March 27, 1987
    ...(Alaska 1963) (interspousal immunity); Hebel v. Hebel, 435 P.2d 8, 9 (Alaska 1967) (parental immunity). Moreover, in Schreiner v. Fruit, 519 P.2d 462, 466 (Alaska 1974), we concluded that a wife or husband has a right to sue for loss of consortium caused by negligently inflicted injury to h......
  • Request a trial to view additional results

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