Whittlesey v. Miller

• Decision Date: 11 October 1978
• Docket Number: No. B-7551,B-7551
• Parties: David Andrew WHITTLESEY, Petitioner, v. Ann P. MILLER, Respondent.
• Court: Texas Supreme Court

Page 665

572 S.W.2d 665

David Andrew WHITTLESEY, Petitioner, v. Ann P. MILLER, Respondent.

No. B-7551.

Supreme Court of Texas.

Oct. 11, 1978.

Rehearing Denied Nov. 22, 1978.

Lancaster Smith and Harvey L. Davis, Dallas, for petitioner.

Johannes, Robertson & Wilkinson, Ronald L. Wilkinson, Dallas, for respondent.

McGEE, Justice.

The question presented by this appeal is whether one spouse has an independent action for loss of consortium as a result of physical injuries caused to the other spouse by the negligence of a third party. The vehicle Stewart Miller was driving was involved in a collision with a vehicle driven by David Whittlesey in June 1974. In March 1976, Miller and Whittlesey entered into a settlement agreement whereby Miller released Whittlesey from liability in connection with the accident for consideration of $9,650. In June 1976, Ann Miller, Stewart's wife, sued Whittlesey for damages, alleging that Whittlesey's negligence had caused personal injury to her husband, thereby depriving her of her husband's consortium. Whittlesey was granted a summary judgment on the basis that a Texas wife could not recover for loss of consortium for the alleged negligent injury to her husband. The court of civil appeals reversed and remanded. 562 S.W.2d 904. We affirm the judgment of the court of civil appeals.

The marital relationship is the primary familial interest recognized by the courts. The remedy for the negligent or intentional impairment of this relationship is a tort action for loss of consortium. ¹ J. Stein, Damages and Recovery, Personal Injury and Death Actions § 203, at 418 (1972). Consortium has been the subject of many different definitions by the courts, but it can generally be defined to include the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage. See, e. g., Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974); Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974); Gates v. Foley, 247 So.2d 40 (Fla.1971); Whitley v. Whitley, 436 S.W.2d 607 (Tex.Civ.App. Houston (14th Dist.) 1968, no writ); Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973). This definition primarily consists of the emotional or intangible elements of the marital relationship. In Texas, it does not include the "services" rendered by a spouse to the marriage. ² These elements have been referred to as a conceptualistic unity, and the action accrues upon the substantial impairment of them. See Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 60, 183 F.2d 811, 814 Cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950); Whitley v. Whitley, supra.

The loss of consortium can arise from either the intentional or negligent conduct of a third party toward the marital relationship. The intentional impairment of consortium can result in actions for either alienation of affections or criminal conversation. ³ Both actions have been recognized by prior Texas decisions. Felsenthal v. McMillan, 493 S.W.2d 729 (Tex.1973) (criminal conversation); Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971) (alienation of affections); Whitley v. Whitley, 436 S.W.2d 607 (Tex.Civ.App. Houston (14th Dist.) 1968, no writ) (alienation of affections).

The husband's right to recover for the negligent impairment of consortium has existed at common law, although there are no decisions by this court expressly holding this. It has only been within the past 25 years, however, that the wife's cause of action in the United States has been recognized. ⁴ The general acceptance of this action is reflected in the Restatement (Second) of Torts § 693 (1977), which now states:

"(1) One who by reason of his tortious conduct is liable to one spouse for illness or other bodily harm is subject to liability to the other spouse for the resulting loss of the society and services of the first spouse, including impairment of capacity for sexual intercourse. . . ."

Comment a to the above characterizes the spouse who suffered the bodily harm as a result of the tortious conduct as the "impaired spouse"; the spouse who brings the independent consortium action is characterized as the "deprived spouse." We find these designations to be pertinent and will use them in the balance of this opinion to assist in simplifying the discussion.

The present action for negligent impairment of consortium contemplates a single tortious act which injures both spouses by virtue of their relationship to each other. Rodriguez v. Bethlehem Steel Corp., 115 Cal.Rptr. at 780, 525 P.2d at 684; General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366, 371 (1972). While the impaired spouse sustains direct physical injuries, the deprived spouse sustains damage to emotional interests stemming from their relationship. In the respective causes of action, the impaired spouse would have the exclusive right to recover for the normal damages associated with such an injury bodily injuries, medical expenses, pain and suffering, loss of earnings, et cetera. The deprived spouse would have the right to bring an action for the loss of consortium and seek recovery on the basis of harm to the intangible or sentimental elements. Finally, while the deprived spouse's suit for loss of consortium is considered to be derivative of the impaired spouse's negligence action to the extent that the tortfeasor's liability to the impaired spouse must be established, the consortium action is, nevertheless, independent and apart from that of the impaired spouse's negligence action. See Gates v. Foley, 274 So.2d 40 (Fla.1971); Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865 (1969); Peeples v. Sargent, 77 Wis.2d 612, 253 N.W.2d 459 (1977); W. Prosser, Handbook of the Law of Torts § 125, at 893 (4th ed. 1971).

It has been argued that the deprived spouse's loss of consortium is an injury that is too indirect to be compensated because the elements involved are too intangible or conjectural to be measured in pecuniary terms by a jury. We do not agree, for to do so would mean that a jury would also be incompetent to award damages for pain and suffering. The character of harm to the intangible or sentimental elements is not illusory. General Electric Co. v. Bush, 498 P.2d at 370. The loss of companionship, emotional support, love, felicity, and sexual relations are real, direct, and personal losses. See Rodriguez v. Behtlehem Steel Corp., supra; Ekalo v. Constructive Service Corp., 46 N.J. 82, 215 A.2d 1 (1965); Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968); Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Colum.L.Rev. 1341 (1961). It is recognized that these terms concern subjective states which present some difficulty in translating the loss into a dollar amount. The loss, however, is a real one requiring compensation, and "the issue generally must be resolved by the 'impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.' " Rodriguez v. Bethlehem Steel Corp., 115 Cal.Rptr. at 777, 525 P.2d at 681.

As previously noted, there are no decisions by this court holding that a husband could recover for loss of consortium when his wife was negligently injured by a third party. In the case of Garrett v. Reno Oil Co., 271 S.W.2d 764 (Tex.Civ.App. Fort Worth 1954, writ ref'd n. r. e.), it was expressly held that the wife had no such cause of action when her husband was negligently injured by a third party. Whittlesey therefore contends that no cause of action exists for either spouse as a result of the above facts, and, consequently, a new cause of action should only be created by the Legislature. This contention is primarily based on statements in the Garrett opinion that the wife's action would be denied until the Legislature effected the change. An analysis of the law in effect at the time of the Garrett decision reveals that there were only a few jurisdictions that recognized the wife's cause of action. This fact well accounts for the court's reluctance in deviating from the common law rule then in effect that was so "universal and of such long standing." Garrett v. Reno Co., 271 S.W.2d at 766.

Such an abdication of judicial responsibility is no longer called for in light of present social realities. The law is not static; and the courts, whenever reason and equity demand, have been the primary instruments for changing the common law through a continual re-evaluation of common law concepts in light of current conditions. See Rodriguez v. Bethlehem Steel Corp., supra; Gates v. Foley, supra; Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960); Comment, The Negligent Impairment of Consortium A Time for Recognition as a Cause of Action in Texas, 7 St. Mary's L.J. 864, 881-82 (1976). Providing either spouse with a cause of action for loss of consortium would allow us to keep pace with modern society by recognizing that the emotional interests of the marriage relationship are as worthy of protection from negligent invasion as are other legally protected interests. See Green, Protection of the Family Under Tort Law, 10 Hastings L.J. 237 (1959).

Therefore, we hold that either spouse has a cause of action for loss of consortium that might arise as a result of an injury caused to the other spouse by a third party tortfeasor's negligence. ⁵ This holding not only aligns Texas with the majority of jurisdictions recognizing the action for either spouse, ⁶ but it also corrects a paradox in the law of this state in that heretofore the marital relationship has been protected from only intentional invasions. Finally, we expressly disapprove of the Garrett v. Reno Oil Co. decision to the extent that it conflicts with this opinion.

Whittlesey also contends that the cause of action does not exist for either spouse in Texas for the reason that...