Thill v. Modern Erecting Company, 41337

• Citation: 284 Minn. 508,170 N.W.2d 865
• Decision Date: 19 September 1969
• Docket Number: No. 41337,41337
• Parties: Therese M. THILL, Appellant, v. MODERN ERECTING COMPANY; Johnson, Drake & Piper, Inc.; J. L. Shiely Company and Jesco, Inc., Respondents.
• Court: Minnesota Supreme Court

Page 865

170 N.W.2d 865

284 Minn. 508

Therese M. THILL, Appellant, v. MODERN ERECTING COMPANY; Johnson, Drake & Piper, Inc.; J. L.

Shiely Company and Jesco, Inc., Respondents.

No. 41337.

Supreme Court of Minnesota.

Sept. 19, 1969.

Syllabus by the Court

A wife whose husband has been injured as the direct result of the negligence of another shall have a right of action against that same person for her loss of consortium, subject to these essential conditions: (a) Because we hold her right of action to be a derivative right, she may recover only if her husband recovers from the same defendant DeParcq, Anderson & Perl, and Richard G. Hunegs, Minneapolis, for appellant.

(b) because we deem it an indispensable safeguard against the danger of double recovery, she will have her cause of action only if it is joined for trial with the husband's own action against the same defendant; and (c) because the wife's action for lost consortium is so much based upon impairment of the marital relationship, were it to continue in the future, any award for her loss of consortium shall be joined in judgment with that of her husband, unless she shall specifically declare to the jury her insistence for judgment in her own name alone. Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154, is partially and prospectively overruled.

Faegre & Benson, Wright Brooks and Paul J. McGough, Minneapolis, for Modern Erecting Co.

Kain & Kressel, Minneapolis, for Johnson, Drake, etc.

Robb, Robb & Van Eps, Minneapolis, for Shiely.

Hoppe & Healy, Minneapolis, for Jesco.

OPINION

PETERSON, Justice.

Plaintiff, Therese M. Thill, whose husband, Edward L. Thill, sustained personal injuries in an industrial accident, appeals from a summary judgment dismissing her claim for loss of consortium against these corporate defendants: Johnson, Drake & Piper, Inc. (Johnson); Modern Erecting Company (Modern); Jesco, Inc. (Jesco); and J. L. Shiely Company (Shiely).

Edward Thill was injured when a truck crane moving a bucketload of ready-mixed concrete at a construction site tipped over on him, rendering him a permanent paraplegic. In his own action, commenced against the four defendants in 1960, a jury by special verdict found Johnson and Modern causally negligent but found Jesco and Shiely not negligent. The special verdict returned against Johnson and Modern was $642,000. The trial court conditionally reduced that award to $375,000, which Edward accepted. A cross-claim of Johnson against Modern and Jesco for indemnity was at the same time denied. Upon the appeal of Johnson and Modern from an order denying their alternative motions for judgment notwithstanding the verdict or for a new trial, we affirmed. Thill v. Modern Erecting Co., 272 Minn. 217, 136 N.W.2d 677. Therese, plaintiff in the instant case, thereafter independently instituted her separate action against the same defendants for her permanent loss of consortium. Plaintiff alleges that by reason of her husband's injuries she has suffered 'a permanent loss of consortium and has been totally deprived of his companionship, comfort, aid, assistance, sexual relations and conjugal society, and has been caused to suffer and sustain great mental pain and anguish which will continue in the future.' No action has been instituted on behalf of the Thill children. ¹

1. The basic issue in this case is whether we should adhere to the rule, otherwise rightly applied by the trial court, that a wife has no action for her own loss of consortium as a result of negligent injury to her husband. Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154. See, also, Hartman v. Cold Spring Granite Co., 247 Minn. 515, 77 N.W.2d 651, and State Farm Mutual Auto. Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N.W.2d 36, which, in different contexts, reiterate the rule.

'Consortium,' as a general description, represents reciprocal rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other. ² Its 'predominant element,' however, as more specifically described by plaintiff's counsel, is 'the loss of sexual relationship,' presumably including frustration of man's primal drive of reproduction. The predominance of this element tends both to exclude claims asserted by children for injury to a parent and to avoid excessive appeal to sentimentality. The marital relationship is a wholeness, so, except only as we have emphasized a specific facet of it, attempts otherwise to single out its elements for the assessment of damages would be inappropriate.

We have, since the Eschenbach case was decided in 1935, held that 'neither wife nor children have a cause of action for an injury inflicted upon the husband and father, that right being strictly limited to the injured party.' 195 Minn. 379, 263 N.W. 155. Even though the wife has a right of action against a third person who intentionally invades her right of consortium, as in the case of alienation of affections, we have until today denied her a cause of action for negligent injury to such right. The rationale has been that, unlike the alienation of affections, the injury resulting from the negligent act of a third person is remedied by the husband's own action for the recovery of loss to his earning capacity and that an additional action by the wife would probably result in double damages. It would, we concluded in Eschenbach, result in 'litigation almost without end, all based upon a single tort and only one individual physically involved in the accident itself.' 195 Minn. 380, 263 N.W. 155.

The Eschenbach rule accorded with the virtually unanimous rule in other jurisdictions at the time, but since then there has developed a marked division of authority. Starting in 1950 with Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, certiorari denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, the wife's right to maintain an action for loss of consortium is now recognized in numerous jurisdictions. ³ This results from recognition of the equal status of the partners in the marriage relationship and a rejection of the medieval concept that the husband had a proprietary right to his wife's services, mainly domestic service, but that the wife, as the property of her husband, had no reciprocal right to his. As Dean Prosser summed it up in his treatise, Law of Torts (3 ed.) § 119, p. 917: 'The loss of 'services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband.' A few states, agreeing with the Hitaffer premise, have neatly resolved the issue by simply abrogating the husband's own action for consortium. ⁴ Others have adhered to their pre-Hitaffer rule, viewing the husband's right of consortium as a historic anomaly too deeply imbedded in tort law to alter but too hazardous of duplicate recovery for extension. ⁵ These various rules, supported as they are by impressive authority, are not so much based upon logic or constitutional mandate ⁶ as they are upon a determination of the judicial sense of public policy.

The rule that we establish today is that the wife of a husband injured as the direct result of the negligence of another shall have a right of action against that same person for her loss of consortium, subject to these essential conditions: (a) Because we hold her right of action to be a derivative right, she may recover only if her husband recovers from the same defendant; ⁷ (b) because we deem it an indispensable safeguard against the danger of double recovery, she will have her cause of action only if it is joined for trial with the husband's own action against the same defendant; and (c) because the wife's action for lost consortium is so much based upon impairment of marital relationship, were it to continue in the future, any award for her loss of consortium shall be joined in judgment with that of her husband, except only if she shall specifically declare to the jury her insistence for judgment in her own name alone. ⁸

The concept of joinder of the two actions, as a safeguard against double damages, is not original but was at least inferentially suggested by counsel for plaintiff, with the support of these recent cases: Fitzgerald v. Meissner & Hicks, Inc., 38 Wis.2d 571, 157 N.W.2d 595; Millington v. Southeastern Elev. Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897; Deems v. W. Md. Ry. Co., 247 Md. 95, 231 A.2d 514; Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 215 A.2d 1.

Eschenbach v. Benjamin, Supra, is overruled to the extent only that it is inconsistent with this opinion. ⁹

2. Today's decision is prospective and is applicable only with regard to personal injuries sustained from and after this date, except that it shall additionally apply to the instant case. ¹⁰ Application of the decision to the instant case is not without difficulty, of course, because it is impossible to join the wife's action with that of her husband's. We hold, therefore, that plaintiff may proceed to trial upon her separate cause of action without necessity of joinder, but that it is incumbent upon the trial court to afford defendants the substitute safeguard of evidentiary rulings and instructions to the jury. The trial court must determine and disclose to the jury what claims were made by Edward L. Thill in the trial of his action against the same defendants and the amount recovered by him in his action, as reduced by its post-trial order. The jury should, in that connection, be instructed that they should make an award to her only for such damage as the evidence now adduced will sustain over and above that necessarily considered by the jury in her husband's prior action for his own loss.

3. We hold, for the purposes of the instant case and in the interest of justice, that both plaintiff and defendants are collaterally estopped against...