Hoekstra v. Helgeland

HANSON, Presiding Judge

(dissenting in part).

I am unable to concur in that portion of the opinion which recognizes, or creates, a separate cause of action in the wife for loss of consortium resulting from negligent injury of her husband.

This portion of the opinion is contrary to the great weight of authority. It has been considered, and rejected, in twenty-seven states and in England. It has been approved in only three states. See Annotation in 23 A.L.R.2d 1378 as supplemented for a comprehensive discussion and collection of cases on this subject.

*115 The cases of Moberg v. Scott, Holmstrom v. Wa'll, and Swanson v. Ball involve intentional wrongs which directly disrupted the wife’s marital relationship. The husbands therein had no cause of action against the wrongdoer because of their participation in the wrongful act. Consequently there was no question of double rec'overy involved. The reasoning in those cases should not be extended to' include a wife’s recovery for loss of consortium resulting from the negligent injury of her husband. The great majority of our courts have refused to do so.

The majority opinion proceeds on the assumption that in South Dakota a husband has a common-law right of action for loss of his consortium by reason of the negligent injury of his wife. If this were so, I would be inclined to agree with the majority opinion and grant the same right to the wife. It would be indefensible to allow one to recover and not theother. However, the law in South Dakota with respect to the husband’s right to recover has never been declared or settled. The majority opinion cities no South Dakota case supporting their assumption. The common law of the several states on this point is not settled or the same. Several states deny the husband’s cause of action. Lockwood v. Wilson H. Lee Company, 144 Conn. 155 , 128 A.2d 330 ; Bolger v. Boston Elevated Railway Co., 205 Mass. 420 , 91 N.E. 389 ; Blair v. Seitner Dry Goods Co., 184 Mich. 304 , 151 N.W. 724 , L.R.A.1915D, 524; Helmstetler v. Duke Power Co., 224 N.C. 821 , 32 S.E.2d 611 , and Martin v. United Electric Rys. Co., 71 R.I. 137 , 42 A.2d 897 . The question has not been settled in California. Deshotel v. Atchison, Topeka & Santa Fe Railway Co., 50 Cal.2d 664 , 328 P.2d 449 .

In my opinion neither the husband nor wife has a cause of action for loss of consortium resulting from the negligent injury of the other. As the New York court observed in the recent case of Kronenbitter v. Washburn Wire Company, 4 N.Y.2d 524 , 176 N.Y.S.2d 354, 355 , 151 N.E.2d 898 , “The argument that equality of the sexes ¿alls for a change overlooks that the husband’s right to damages for loss of consortium is based on outworn theory. It derives from the time when the wife was regarded in law in some respects as her husband’s chattel. He was allowed damages for in *116 jury to her in much the same manner that he would have been allowed damages for the loss or injury of one of his domestic animals.” The court indicated the action should be restricted or abolished rather than extended.

The husband’s separate cause of action for loss of consortium grew out of and was founded upon the wife’s subservient legal status. The common-law disabilities of -the wife were removed by the enactment of our Married Women’s Act. The husband and wife now have legal equality. Both have equal access to our courts for the full and complete redress of their respective wrongs and injuries. Thus the ancient foundation upon which the husband’s cause of action for loss of consortium rested has been removed. No reason remains why either party to the marriage should have a duplicating cause of action for injury of the other. This ancient cause of action should be left buried in the past rather than revived and extended to the wife. In my opinion, the legal effect of our Married Women’s Act was “to equalize the legal status of husband and wife, and to deny to each any overlapping recovery on account of the other’s loss or injury.” Helmstetler v. Duke Power Co., 224 N.C. 821 , 32 S.E.2d 611, 613 .

ROBERTS, J., concurs.