Sostock v. Reiss

• Decision Date: 24 December 1980
• Docket Number: No. 79-1996,79-1996
• Citation: 92 Ill.App.3d 200,47 Ill.Dec. 781,415 N.E.2d 1094
• Parties: , 47 Ill.Dec. 781 Wendy SOSTOCK and Daniel Sostock, Plaintiffs-Appellants, v. John REISS, Harmswood Stables North, Inc., and The Harmswood, Inc., Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 1094

415 N.E.2d 1094

92 Ill.App.3d 200, 47 Ill.Dec. 781

Wendy SOSTOCK and Daniel Sostock, Plaintiffs-Appellants, v. John REISS, Harmswood Stables North, Inc., and The

Harmswood, Inc., Defendants- Appellees.

No. 79-1996.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 24, 1980.

[47 Ill.Dec. 782] Brown & Shinitzky Chartered, Chicago (Edwin J. Shinitzky and Nelson Hembree, Chicago, of counsel), for plaintiffs-appellants

Crooks & Gilligan, Ltd., Chicago (John W. Gilligan, Chicago, of counsel), and McKenna, Storer, Rowe, White & Farrug, Chicago (Robert S. Soderstrom, Chicago, of counsel), for defendants-appellees.

MEJDA, Justice:

Plaintiff Daniel Sostock and Wendy Sostock (Wendy) filed a two-count complaint against defendants seeking damages for personal injuries sustained by Wendy prior to her marriage. In Count II, plaintiff sought to recover for loss of consortium sustained from the date of their subsequent marriage. Defendant John Reiss' motion to dismiss Count II was granted. Plaintiff appeals and requests this court to recognize a cause of action for loss of consortium from the date of marriage where at the time of Wendy's accident they were engaged to marry and shortly thereafter were married. Wendy is not a party to this appeal.

In Count II of the complaint, plaintiff alleged that on May 13, 1977, Wendy sustained personal injuries in a fall from a horse allegedly caused by defendants' negligence and that on June 5, 1977, he married Wendy, and at all times subsequent thereto was her lawful, wedded husband, and that he lived, consorted and cohabited with his said wife; that following his marriage he has suffered the loss of the services of his wife and has been deprived of her affection, society, companionship and consortium by means of defendants' conduct. Defendant John Reiss made a motion to strike and dismiss the second count because no legal relationship existed between plaintiff and Wendy at the time of the accident and because plaintiff voluntarily assumed the marital relationship. The trial court granted defendant's motion and certified it as a final and appealable order. Plaintiff appeals from the denial of his motion for rehearing.

OPINION

The sole issue presented for review is whether a cause of action for loss of consortium exists in favor of a husband where the injury to his wife occurred shortly before their marriage while they were engaged. It is well settled that under Illinois law a spouse may recover for loss of consortium where his spouse is injured due to the negligent acts of third persons. See Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881.

Plaintiff contends that although Illinois courts have never addressed the instant issue two federal district court decisions indicate "a definite willingness * * * to allow recovery for loss of consortium where the couple had evidenced a clear intention to be married and where the accident in question closely preceded the date of the marriage."

Plaintiff relies, almost exclusively, on Sutherland v. Auch Inter-Borough Transit Co. (E.D.Pa.1973), 366 F.Supp. 127, which was a diversity action and purported to follow Pennsylvania law. There the husband was allowed to recover for loss of consortium from the date of marriage which took place 27 days after the wife's injury. The federal court held that it was not bound by the lower court decision in Sartori v. Gradison Auto Bus Co., Inc. (1967), 42 Pa.D. & C.2d 781, 47 Wash.Co. 246 ¹ and stated:

"Although the Sartori court did not expound on the time interval involved between accident and marriage, we are of the opinion that the Supreme Court of Pennsylvania would make some modification of the holding in that case where, at the time of the accident, plaintiffs were engaged to be married and the wedding date was less than a month away." 366 F.Supp. at 134.

Sartori held that:

"(where a) woman incurs injuries prior to her marriage, the right to recover for the bills should be considered her property and her cause of action. She should plead and if she proves it, collect it. A subsequent husband should not acquire any right to sue for loss of consortium. He should not be entitled to marry a cause of action." 42 Pa.D. & C.2d, at 785.

However, our research of Pennsylvania law indicates that contrary to Sutherland, its supreme court is not likely to modify the Sartori rule. Orga v. Pittsburgh Ry. Co. (1944), 155 Pa.Super. 82, 38 A.2d 391, is the only intermediate court of review in Pennsylvania to indicate, in dictum, that a husband may claim damages for loss of consortium where his spouse sustained injury prior to marriage. However, the court there refused to decide the issue since it was not raised on the trial level. Two years later this dictum was specifically rejected in Donough v. Vile (C. P. Phila. County 1947), 61 Pa.D. & C. 460. There, although the injury to the wife occurred only 10 days prior to the scheduled wedding date (which was delayed one month due to the accident), the court held that where the marital relationship did not exist at the time of the tort, a cause of action cannot be created by marriage subsequent thereto. 61 Pa.D. & C. at 462.

In 1958, Meehan v. City of Erie (C. P. Erie County 1958), 42 Erie 71, another Pennsylvania court of common pleas, reiterated this principle. Eileen Meehan, while single, was injured on July 31, 1955, and married Robert Plowski sometime prior to the filing of the complaint on January 3, 1957. Although the court dismissed the action because of deficiencies in the complaint, it stated that since Robert married Eileen after the accident he could not in so doing acquire any rights against defendants. It reasoned that it would be absurd to assume that where a woman was seriously injured and permanently crippled in an accident prior to marriage that a man could thereafter marry her and claim to be deprived of his expected rights. 42 Erie at 76.

In 1963, another court of common pleas in Pennsylvania held that since the husband had no right whatever to the services of his prospective wife at the time of the accident, he lost no rights for which he could claim compensation from defendants. (Fontana v. Mellott (C. P. Fulton County 1963), 4 Adams L.J. 162, 167.) That court also expressly refused to follow the dictum in Orga.

Even after Sutherland, Pennsylvania state courts still refused to extend a cause of action for loss of consortium to a prospective spouse. (Rockwell v. Liston (C. P. Fayette County 1975), 71 Pa.D. & C.2d 756.) There the district court, while noting the short time span between the accident and the marriage (approximately one month), reasoned that since an action for consortium was an anachronism, that the supreme court of Pennsylvania would be unwilling to extend the rule where no marriage existed at the time of the injury. 71 Pa.D. & C.2d at 757-58.

Plaintiff cites only one other case to support his position, Wagner v. International Harvester Co. (D.Minn.1978), 455 F.Supp. 168. There the husband was injured nearly a year and a half prior to his marriage and then apparently before he even met his wife. Wagner, while following the general rule that a wife who was not married to her husband at the time of his injury has no cause of action for loss of consortium, did state "the general rule may yield to special circumstances in unusual cases." (455 F.Supp. at 169.) Although Sutherland is then cited to support this statement, there are no guidelines or standards indicating when these special circumstances would arise. At best, this dictum is equivocal especially since Wagner was convinced that the rule of Sartori would be followed by the Minnesota courts. (455 F.Supp. at 169.) Consequently, Wagner is not supportive of plaintiff's position.

Numerous other state court decisions have dealt with this issue. As early as 1939, a New York appellate court held that a husband cannot recover damages for loss of his wife's services, even where the wife was injured only two months prior to the marriage. It held that if, at the time of his subsequent marriage, plaintiff's wife was disabled as a result of a previous negligent act, plaintiff took her as his wife in her then existing state of health and thus assumed any deprivation resulting from such disability. Redemacher v. Torbensen (1939), 257 App.Div. 91, 13 N.Y.S.2d 124.

In 1964, a Louisiana appellate court held that a motorist was not permitted to recover medical expenses incurred by a guest whom he later married. Cutrer v. Travelers Indemnity Co. (La.Ct.App.1964), 170 So.2d 693.

In 1977, a California appellate court held that no action for loss of consortium could be maintained where plaintiff and the injured party were not married but were engaged and living together at the time of the accident even though the parties were married 16 days later. Tong v. Jocson (1977), 76 Cal.App.3d 603, 142 Cal.Rptr. 726.

In 1980, Maine's supreme court undertook an extensive discussion of the present issue. In Sawyer v. Bailey (Me.Sup.Ct.1980), 413 A.2d 165, the parties had announced their engagement on July 3 setting their wedding date for September 17, and plaintiff's fiancee was injured on July 14. The court there held that where the injured person received his or her injury prior to marriage, the other spouse upon marriage has no cause of action for loss of consortium even though they were engaged to be married at the time of injury. (413 A.2d 166.) It reasoned that the right of consortium grows out of the marital relationship and that the mere engagement to marry does not entitle the parties to the legal protection afforded spouses. (413 A.2d 166-67). Sawyer questioned the persuasiveness of the Sutherland decision since subsequent Pennsylvania lower court decisions refused to follow its holding. Our research does not disclose a single state court decision supporting plaintiff's position.

Plaintiff also argues that the status of husband and wife was...