Snodgrass v. Cherry-Burrell Corp.

• Decision Date: 28 October 1960
• Docket Number: CHERRY-BURRELL
• Citation: 164 A.2d 579,103 N.H. 56
• Parties: Eleanor SNODGRASS v.CORP.
• Court: New Hampshire Supreme Court

Page 579

164 A.2d 579

103 N.H. 56

Eleanor SNODGRASS v. CHERRY-BURRELL CORP.

Supreme Court of New Hampshire.

Argued Sept. 8, 1960.

Decided Oct. 28, 1960.

Broderick & Loughlin, Manchester, for plaintiff.

Sulloway, Hollis, Godfrey & Soden and Arthur W. Mudge, Concord, for defendant.

DUNCAN, Justice.

Since the decision of Hitaffer v. Argonne Co., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, much has been written by courts and commentators concerning the right of a wife to recover for loss of consortium due to injury negligently caused to her husband. Prosser, Torts (2d ed.) s. 103, p. 690; 1 Harper & James, Torts, s. 8.9; 17 Wash. & Lee L.Rev. 183. The holding of that case that a wife has such a right has been adopted by a few jurisdictions, but in most where the question has arisen recovery by the wife has been denied. Thus the great weight of authority is opposed to the proposition advanced by the plaintiff in this case. Annotation 23 A.L.R.2d 1378; Neuberg v. Bobowicz, 401 Pa. 146, 162 A.2d 662, 663, 667. See also, Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1; Lippman: The Breakdown of Consortium, 30 Colum.L.Rev. 651.

The plaintiff is doubtless correct in her statement that the 'exact question has never been decided in this jurisdiction.' Wyatt v. Williams, 43 N.H. 102, held that a widow might not maintain an action to recover damages arising out of the fatal wounding of her husband, including damages for loss of 'support, comfort, fellowship, and society * * * of * * * her husband.' However the case was decided before enactment of the wrongful death statute, and before the married women's acts had taken their present form. Cf. RSA ch. 460. In Bedore v. Newton, 54 N.H. 117, under statutory provisions expressly authorizing actions by married women for damages arising out of unlawful sale of intoxicating liquor, a widow was permitted to maintain an action for the death of her husband, alleging loss of support and of his society and protection. Neither case affords a basis for decision of the case before us.

The right of a husband to recover for loss of consortium caused by injuries negligently inflicted upon his wife was firmly established by Guevin v. Manchester St. Railway, 78 N.H. 289, 99 A. 298, L.R.A. 1917C, 410, a decision which may properly be considered a leading case upon the subject. It was there considered that the damages recoverable by the husband in such a case include 'three elements--services, society, and sexual intercourse.' Id., 78 N.H. 294, 99 A. 301. The court declined to overrule Booth v. Manchester St. Railway, 73 N.H. 529, 63 A. 578, in which it was held that the statutes relating to married women had not abolished a husband's rights to his wife's services voluntarily rendered in the home. The opinion considered in detail many of the arguments now advanced in opposition to the claim of this plaintiff and the disposition made of them need not be repeated here. Certain statements by the court however, are apposite. Speaking of the effect of the married women's acts, the court said: 'The statute [P.S., c. 176, s. 2, now RSA 460:2] does not profess to create new rights, but to give to the wife the rights which her husband theretofore could claim through her or to give vitality to rights theretofore dormant because of her inability to sue. It does not undertake to transfer from husband to wife rights which were theretofore his in the strict sense; that is, rights for the violation of which he must sue at common law without joining her as plaintiff.' Id., 78 N.H. 297, 99 A. 303.

With respect to the argument that if the husband should recover in the suit before the court, it must follow that the wife 'can in like manner recover for injuries to [her husband],' the court said: 'But it may be remarked that notwithstanding the changes which have been made the husband is still the head of the family, and in many ways represents its interests. For example, it is not likely to be claimed that the wife now has the same right as the husband to sue for the seduction of their daughter. Again, the duty to support the wife rests upon him, and she has in this way a substantial, though indirect, interest in what he recovers.' Id., 78 N.H. 300, 99 A. 304.

In making these statements the court cannot be taken to have been unaware of the earlier holding of Seaver v. Adams, 66 N.H. 142, 19 A. 776. See 308 Briefs & Cases 651; and Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A.1916B, 907. In the Seaver case the married women's statute, in substantially its present form (RSA 460:2), was construed to permit a married woman to maintain an action for seduction and alienation of the affections of her husband. Yet we are not persuaded that the 'entire equality' referred to in the Seaver case (66 N.H. at page 144, 19 A. 776) has been achieved. The reason is suggested by the quotations from Guevin v. Manchester St. Railway set out above. 'The statute does not profess to create new rights * * *.' Id., 78 N.H. 297, 99 A. 303.

Although husband and wife have been placed in most regards in a position of equality in dealing with third persons, their respective rights and duties inter se are not precisely reciprocal, but retain distinguishing qualities of their own. Their respective rights against third persons because of conduct affecting the conjugal relation are necessarily influenced by their relative positions in that relation. The husband is under a duty to support the wife. She has a correlative duty to render him service in the home, albeit he may not effectively compel such service. By virtue of the married women's act, the right to compensation for services rendered by her to others is now hers, and she may recover for any loss of income from such services occasioned by the negligence of third persons. Cooper v. Alger, 51 N.H. 172. But for loss of services voluntarily rendered by her in the home, the right of recovery remains in the husband. Guevin v. Manchester St. Railway, supra; Gaillard v. Boynton, 1 Cir., 1934, 70 F.2d 552. See Warren: Husband's Right to Wife's Services, 38 Harv.L.Rev. 421, 436.

At common law the husband recovered for loss of his wife's services whether rendered within or without the home. See Cooper v. Alger, supra. At common law also, the wife might recover for injuries to her own person, by an action in which her husband joined. See Harris v. Webster, 58 N.H. 481. However we are aware of no New Hampshire decision at common law holding that loss of the husband's...