The opinion
PETERS, J., Concurring and Dissenting.
I concur with that portion of the opinion prepared by the Chief Justice *482 holding that the judgment in favor of Dorothy West should be affirmed. I dissent from that portion of the opinion reversing the judgment in favor of her husband, Mert West.
The majority, in concluding that the judgment as to Mert West should be reversed, hold that, in this state, a husband has no cause of action for the negligent interference with those noneconomic aspects of marriage usually included within the term “consortium.” Stated another way, the majority hold that a husband, in this state, is not entitled to recover on his own behalf for a negligent injury to his wife that results in depriving him of his privilege of sexual intercourse with his wife, of the possibility of becoming a father, and of the right to the society, care and comfort of his wife. This holding is unrealistic and unsound.
A large portion of our family law is devoted to protecting the spouses against intentional interference with these conjugal rights. If a wife were to deprive her husband of these rights it would, of course, be a ground for divorce. But, according to the majority, negligent interference resulting in the deprivation of these rights is not compensable! This holding is contrary to the common law, is contrary to the overwhelming weight of authority elsewhere, and is contrary to the public policy of this state.
The protection of the marriage relationship is, obviously, a matter of vital concern to the state. The producing of children is indispensable to the welfare of the state. As Professor Barbara Armstrong puts it in discussing this subject in her book California Family Law, volume 2, at page 1504: “Moreover, strong public policy stands in the way of denying a husband the right to recover for loss of consortium through negligent injury to his wife. What greater loss could a husband suffer, for example, than the destruction of normal sexual relations in his married life, and the hope of children of his own blood?”
There can be no doubt, and the majority concede, that the common-law rule was and is that a husband has such a cause of action. Such right was recognized as early as 1619 in the case of Guy v. Livesey, 79 Eng.Rep. 428. In 27 American Jurisprudence, section 501, page 100, the following statement appears, supported by many authorities: “At common law, a husband has a cause of action on the case against one who wrongfully or negligently injures his wife and thereby causes him expense and loss of consortium—per quod consortium amisit.” (See also 8 Holdsworth, History of English Law *483 (1926), p. 430.) This rule has recently been reaffirmed in England by the House of Lords. (Best v. Samuel Fox á Co. Ld. [1952], A.C. 716.)
The overwhelming weight of authority in this country (referred to in the majority opinion as “a number of American jurisdictions”) is to the effect that a husband has such a cause of action. (See many eases collected and commented on in 21 A.L.R. 1517 ; 133 A.L.R. 1156 ; see also annotations on the wife’s right to such a cause of action, 5 A.L.R. 1049 ; 59 A.L.R. 680 ; 23 A.L.R.2d 1378 .) The legal writers on this subject also agree that a husband should have, and in most states has, such a cause of action. (2 Armstrong, California Family Law, p. 1502; Prosser on Torts (2d ed.) pp. 698-705; 22 Mich. L. Rev. 1 ; 30 Columb. L. Rev. 651; 38 Harv. L. Rev. 421 , 622.)
In the face of these authorities, the majority repudiate the rule, and hold that the husband is without remedy against a tort feasor who negligently interferes with these rights. One would expect that, before such a well-settled rule is repudiated by judicial fiat, strong and compelling reasons would be set forth justifying such a repudiation. We look in vain in the majority opinion for any such reasons.
The majority opinion is predicated on the false premise that such a right should not exist in the husband because the Legislature has not expressly provided for such a right. After discussing the rule that at common law the wife had no such right, and after calling attention to the fact that this court in Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664 [ 328 P.2d 449 ], held that the wife has no such cause of action in this state, the majority opinion states: “There is no sound reason to depart here from the principle that the Legislature is the proper body to decide whether recovery for loss of consortium should be permitted and, if so, under what terms and conditions.”
Apparently the majority have overlooked section 22.2 of the Civil Code, which provides: “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.” 1 If the Legislature has not seen fit to change a com *484 mon-law rale, at least a common-law rale existing at the time this state was admitted into the Union in 1850, the courts should not repudiate such rule but should follow. (See cases collected and commented on in 10 Cal.Jur.2d, p. 651, § 2.)
Apparently, in the realization that they are repudiating a common-law rule, and that this should not be done without some good reason, the majority state that because the wife had no such right at common law it “would be extremely inequitable” to grant the right to the husband. This solicitude for symmetry in the law may be laudable but it carries little weight against a settled rule of the common law. The common law itself created this lack of symmetry. The point does not have to be labored that the law is not necessarily logical nor symmetrical. Lack of symmetry alone is no sound reason for this court, by judicial fiat, to enter into the legislative field by repudiating a common-law rule that the Legislature itself has not seen fit to repudiate. It might be pointed out that the House of Lords in Best v. Samuel Fox c& Co. Ld., supra [1952], A.C. 716, did not find this lack of symmetry any ground for reversing the settled common-law rule as to the husband. Moreover, it can be argued with what I submit is sounder logic, that, if symmetry is to be secured, it should be secured by holding that the wife as well as the husband is entitled to maintain such an action. Such a result refusing to follow the common-law rule to the contrary as to the wife, could be justified on the reasoning that the Legislature, by its many laws freeing women from their common-law disabilities, had evidenced an intent to place the wife in the same position as the husband so far as the right to consortium is concerned.
The majority opinion also contains an obvious non sequitur. It correctly points out that in Gist v. French, 136 Cal.App.2d 247 [ 288 P.2d 1003 ], the District Court of Appeal held that a husband has such a cause of action. The majority opinion fails to point out that this court denied a hearing in the Gist case without a dissenting vote. The majority opinion then correctly points out that in Deshotel v. Atchison, T. & S. F. Ry. Co., supra, 50 Cal.2d 664 [ 328 P.2d 449 ], this court, one justice dissenting, determined that the wife does not have such a cause of action. The Deshotel case, in part at least, was largely predicated on the theory that since the wife, at common law, had. no .such cause of action that, if such right were to be created, it should he created by the Legislature and not by the courts. That reasoning at least has the virtue of complying with and enforcing the common-law rule in accordance with *485 the mandate of section 22.2 of the Civil Code. But now, in the majority opinion of this case, the Deshotel case is relied on as authority to deny the husband a cause of action for loss of consortium by reasoning that it would be inequitable to distinguish between the husband and wife in this regard. Thus a ease predicated upon the theory that the court was bound to follow the common-law rule becomes converted into a case holding that the court must now reverse a common-law rule! The fallacy in such reasoning is obvious.
The majority place great reliance on the obiter dicta appearing in the decision of Meek v. Pacific Electric Ry. Co., 175 Cal. 53, 56 [ 164 P. 1117 ], to the effect that a husband has no cause of action for loss of consortium in this state, and concludes that that court in that case interpreted the words “consequential damages” appearing in section 427 of the Code of Civil Procedure as a legislative determination that damages for loss of consortium should not be allowed. This is a clear misinterpretation of the Meek case.
Neither section 427 of the Code of Civil Procedure nor the Meek case has anything to do with the determination of what damages are allowed in any action. Section 427 is the basic section on joinder of causes of action. After setting forth in nine separate subdivisions the types of causes of action that may be joined, the section provides: “Provided, however, that in any action brought by the husband and wife, to recover damages caused by any injury to the wife, all consequential damages suffered or sustained by the husband alone, including loss of the services of his said wife, moneys expended and indebtedness incurred by reason of such injury to his said wife, may be alleged and recovered without separately stating such cause of action arising out of such consequential damages suffered or sustained by the husband.” Obviously, this section has nothing to do with defining causes of action or in fixing the elements of damage for any cause of action. It simply provides that the husband may join, without separately stating it, in an action brought by the husband and wife, a cause of action for “consequential damages.” The section does not purport to define what is included in the term “consequential damages.”
We are not required to look at and try to interpret sections of our code that have nothing to do with what items of damage are recoverable in a tort action. The Legislature has already spoken on this subject. Section 3333 of the Civil Code, *486 a section given only passing reference by the majority, reads as follows: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Italics added.) This section, the basic section on the measure of damages, makes no artificial distinctions between the loss of “economic” and “noneconomic” elements of marriage. It permits recovery for “all” of the detriment “proximately caused” by the negligent act. Obviously, it is a “detriment” to be deprived of the rights and privileges included within the term “consortium,” and it is also clear that such “detriment” is proximately caused by the tort. Thus, the Legislature, far from excluding such detriment, has expressly included such detriment as a recoverable element of damage.
Now to get back to the Meek case. The majority opinion refers to the following sentence from the Meek decision (175 Gal. at p. 56), (fairly and properly recognizing that the sentence is mere dicta): “The services rendered by a wife, aside from consideration of her society, or what is termed the consortium, damages for which are not recoverable in this state, may be and often are of such character that no witness can say what they are worth.” No supporting statutory or ease law is cited in support of this bald incorrect statement. Then the majority opinion states that the Meek case refers to section 427 of the Code of Civil Procedure, and concludes that the above quoted sentence “amounted to a construction of the phrase 1 consequential damages’ as referring only to damages of an economic character, for example, medical expenses and loss of services.” Such a holding is not to be found, directly or by implication, in the Meek case. Section 427 is not referred to in that opinion for the purpose of ascertaining the meaning of the phrase “consequential damages” at all, but is referred to for an entirely different purpose, namely, for the purpose of permitting a joinder. An examination of the Meek opinion shows that the question there involved was whether in an action by a husband and wife for negligent injury to the wife the husband could properly allege and recover for medicines purchased by him for his wife, for the cost of surgical care for his wife and for the loss of her services without separately stating such cause of action. The court in discussing that problem said ( 175 Cal. 53 at p. 55 ) : “Express authority for thus incorporating in one cause of *487 action a statement of the damages sustained by the wife on account of personal injuries with a statement of the consequential damages suffered by the husband is found in subdivision 8 of section 427 of the Code of Civil Procedure, . . .” There is no further reference in the Meek opinion to section 427. It is obvious that this reference to the section was made in reference to joining causes of action. It is equally clear that this reference had nothing to do with determining what elements are to be included within the phrase “consequential damages.” The statement made later in the opinion, quoted above, to the effect that a husband cannot recover for loss of consortium had no relation at all to section 427.
The holding in the majority opinion that the instruction was erroneous which stated that if the jury decided in favor of Mr. West it should award him a sum that would compensate him for “any loss of his wife’s services or society,” because the word “society” permitted recovery for loss of consortium, is also contrary to the well-settled rule in this state that damages for such loss of “society” are recoverable in wrongful death actions. Such actions are provided for by section 377 of the Code of Civil Procedure. That section provides that in such an action “such damages may be given as under all the circumstances of the case, may be just.” This language is certainly as broad as the language of section 3333 of the Civil Code permitting the claimant in a tort action to recover such “amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” But, in a wrongful death action, the plaintiff may recover for the many noneconomic losses caused by the tort as well as for economic losses. This well-settled rule was stated as follows by Justice Shaw in Hále v. San Bernardino etc. Co., 156 Cal. 713 , at page 716 [ 106 P. 83 ] : “It has been frequently held that, in determining the financial loss to the widow and infant child, resulting from the death of the husband and father, the jury may consider the financial loss accruing from the deprivation of the society, comfort, care, and protection of the deceased, as well as of his support.” (Italics added.)
Thus, if one spouse is deprived of his consortium rights by reason of the tortious act of defendant that results in the death of the other spouse, recovery may be had for the loss of such consortium. But, according to the majority, if one spouse is not killed but is injured in such a way that the other is permanently deprived of such rights, then he cannot *488 recover for this loss! Such a distinction is artificial, absurd and unsound.
That a husband should recover under the facts of the instant case for loss of consortium is justified by reason, logic, authority, the common law, and by the public policy of this state. Por these reasons I would affirm the judgment in favor of Mert West.
This provision has been in our law since 1850 (Compiled Laws of California 1850-1853, p. 186). It subsequently became section 4468 of the Political Code. In 1951 it became section 22.2 of the Civil Code (Stats. 1951, p. 1833).