Smith v. Nicholas Bldg. Co.

• Decision Date: 19 November 1915
• Docket Number: 14717
• Citation: 93 Ohio St. 101,112 N.E. 204
• Parties: Smith v. The Nicholas Building Co.
• Court: Ohio Supreme Court

112 N.E. 204

93 Ohio St. 101

Smith v. The Nicholas Building Co.

14717

Supreme Court of Ohio

November 19, 1915

Damages - Loss of consortium - Injuries to husband - Wife cannot maintain action, when.

A wife has no right of action against a person for the loss of the consortium of her husband caused by personal injuries sustained by him through the negligence of such person.

CERTIFIED by the Court of Appeals of Lucas county.

Plaintiff in error, Edna H. Smith, filed a petition in the court of common pleas of Lucas county, from which it appears that she is the wife of one Floyd J. Smith and that prior to the injuries complained of they were living happily together as husband and wife, and but for said injuries would continue to do so; that the defendant is the owner of an office building in the city of Toledo, in which there is a passenger elevator used for the purpose of carrying its tenants from the street to the floors and offices in said building; that the said Floyd J. Smith, a tenant of defendant in said building, while a passenger on said elevator and through the carelessness and negligence of the defendant received severe injuries as the result of which he was permanently injured and crippled for life.

Plaintiff alleges that after her husband suffered said injuries, and wholly because thereof, he became nervous, irritable, morose fretful, excitable and ill-tempered, and has so continued ever since, and his mental condition in that regard is growing worse, so that she is now, and since the date the injuries were received has been, and during her future married life with her said husband will be, deprived of his society, companionship, conjugal affection, fellowship and assistance, to her damage in the sum of $15,000.

The court of common pleas sustained a demurrer to the petition upon the ground that it did not contain facts sufficient to constitute a cause of action, ache plaintiff not desiring to plead further or amend, judgment was rendered in favor of the defendant. Error was prosecuted to the court of appeals, and the judges of that court, having found that the judgment of affirmance which they had agreed upon was in conflict with a judgment pronounced upon the same question by another court of appeals of the state, certified the record of the case to this court for review and final determination.

Mr. Charles M. Milroy and Mr. S. S. Burtsfield for plaintiff in error.

Messrs Tracy, Chapman & Welles, for defendant in error.

NEWMAN J.

The question presented here is whether or not a wife has a right of action against a person for the loss of the consortium of her husband caused by personal injuries sustained by him through the negligence of such person. It is conceded that such right did not exist at common law. It is suggested, however, that if the husband has the right to recover for the loss of the consortium of the wife in an action predicated upon negligence, there is no reason why such right should not exist now in favor of the wife in case of the loss of the consortium of the husband, inasmuch as her common-law disabilities have been abrogated by statute. It is true that at common law the husband could maintain an action for the loss of the consortium of the wife, but within the legal meaning of consortium there was included not only affection, solace, comfort, companionship and society incidental to the marital relation, but also the services of the wife. These services of the wife in the household, in the discharge of her domestic duties, in the care of the home and in the education and rearing of the children, belonged to the husband. They were of a practical and material value and capable of being estimated in money. If the wife for any reason was unable to perform them the loss was the husbands, not hers, and he was permitted to sue for the loss thereof. The loss of services constituted the gist of the action where the injury complained of was due to negligence. This right has not been abridged or affected by the legislation which has abrogated the common-law disabilities of the wife. B. & O. Rd. Co. v. Glenn, 66 Ohio St. 395. In that case it is said that the husband is entitled to the society and services of the wife and that for an invasion of such right he can maintain an action, but the basis of recovery in that case was the loss of services and the expenses the husband had incurred in healing the wife's injuries. The services for which the wife may now recover compensation in her own name, since the removal of her common-law disabilities, are services other than those rendered in the discharge of her household and domestic duties and not in interference therewith. Bechtel v. Ewing, Admr., 89 Ohio St. 53.

In the case at bar plaintiff avers that, by reason of the injuries complained of, her...