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NEUBERG v. BOBOWICZ. (06/30/60)

June 30, 1960

NEUBERG, APPELLANT,
v.
BOBOWICZ.



Appeal, No. 207, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1958, No. 3412, in case of Israel Neuberg et al. v. Josef Bobowicz et al. Order affirmed. Trespass for personal injuries. Defendant's preliminary objections sustained and order entered, opinion by REIMEL, J. Wife, plaintiff, appealed.

COUNSEL

Norman Shigon, for appellant.

Victor L. Drexel, with him Pepper, Hamilton & Scheetz, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 401 Pa. Page 147]

OPINION BY MR. JUSTICE EAGEN

In a trespass action brought by her husband for injuries and pecuniary losses allegedly sustained by him, as an occupant of an automobile, because of the alleged negligence of the defendants (operators of two vehicles which figured in the intersection collision), Mrs. Neuberg has joined as plaintiff and seeks recovery for the resultant loss to her of his "society, services and sexual companionship." Preliminary objections filed on behalf of one of the defendants, in the nature of a demurrer and a motion to strike from the complaint the paragraph setting forth the prayer of the wife, were sustained by the court below. This appeal is from that ruling.

Thus is there raised directly, for the first time in an appellate court of this Commonwealth, a question much litigated in other jurisdictions of this Union and of England. Does a married woman have a cause of action in Pennsylvania for the loss of her husband's consortium caused by the negligent act of a third party? The authorities elsewhere are many and conflicting. Reasons assigned for the respective positions taken are similarly numerous and divergent.

While, concededly, there are no intra-jurisdictional cases directly in point, there are, in our reporters, cases which shed varying degrees of light on this Court's past attitude toward similar attempt to assert related

[ 401 Pa. Page 148]

    causes of action. Undoubtedly contained in the concept of consortium is the element of services. This Court in Kelley v. Mayberry Township, 154 Pa. 440, 26 Atl. 595 (1893), when defining "services", referred to Cooley on Torts as follows: "Speaking of the origin, etc., of the term 'services,' the same learned author says the word as now understood in connection with claims by husbands for damages, etc., 'implies whatever of aid, assistance, comfort and society the wife would be expected to render to, or bestow upon, her husband, under the circumstances and in the condition in which they may be placed, whatever those may be.'" In Quinn v. Pittsburgh, 243 Pa. 521, 90 Atl. 353 (1914), the charge of the trial court in an action in trespass by a mother, suing for personal injuries sustained by her ten year old daughter and for her own loss of the child's services, was to the effect that the jury could award to the mother damages for "the companionship which she (the daughter) would (otherwise have given) her mother." There would appear to be no distinction between the words "companionship" and "society". In reversing the judgment in favor of the mother, this Court, at page 525, made the following significant comment: "The right to recover for loss of companionship is confined to cases where a husband sues for injuries to his wife. The law does not recognize loss of companionship as an element of damage in any other relation." In Donoghue v. Consolidated Traction Co., 201 Pa. 181, 50 Atl. 952 (1902), we said at 183: "There is no natural right in one person to damages for injury to another. At common law the husband had an action for damages for injury to the wife whereby he lost her services, because he had the right to her services, including her earnings. The right arose from the common law relation of unity of person, the husband as to personal property and services being the

[ 401 Pa. Page 149]

    person. But marriage is a civil contract involving rights under the control of the lawmaking power. The legislature may sever the unity of person, and as to property, the right to separate earnings of the wife, and the damages for personal injury to her, it has already done so to a very great extent. It would be but a step farther in the same direction to take away altogether the husband's action for loss of services of the wife."

Before passing on to our review of out-of-state authority, we note that the same question presented here has been ruled on by our lower courts in Stedman v. Phillips, 36 Lack.Jur. 128 (1935); Dupe v. Hunsberger, 58 Pa.D. & C. 483, 62 Montg. 315 (1946); Faust v. Kunselman, 30 Wash. 106 (1948); Chomko v. Butchabitz, 53 (No. 2) Lack. Jur. 180 (1952); Hayes v. Swenson, 106 Pitts. 141 (1958); and Mlynek v. Yarnall, 19 Pa.D. & C.2d 333 (1959), in only one of which cases, Hayes, was this issue decided favorably to the wife-plaintiff. The Hayes decision was caused to turn on the theory that "[what] is sauce for the gander is sauce for the goose." Even without a painstaking research into the "Game Laws" of this state, we will venture to say that, accepting the analogy, there can be no quarrel with that conclusion as a general proposition. But it is only after an historical inquiry is made into the ancient origins of the gander's sauce, as it were, and as it is applied to the situation at hand, that one can conclude, as we do, that either 1) the sauce was never a proper ingredient of the diet or 2) however indispensable it may have been in decades past, it has no place in that diet today. Be that as it may, it is in our opinion, today more than ever, just that: sauce.

We are advised that the trend of the hour is toward the complete and universal emancipation of women and

[ 401 Pa. Page 150]

    that this end is, to a large extent, now an accomplished fact. Of that we have been aware. The roots which at one time, if ever, gave nurture and a legitimate birth to the husband's right to assert a claim for loss of consortium have long since wizened and died. They owe their origin to a seed of thought which, when viewed by the eyeglass of the present day, none should accept, much less implant anew. In St. Matthew's Gospel, Chapter XIX, we find the precept that "a man shall leave [his] father and mother, and shall cleave to his wife and they twain shall be one flesh." The lawyers at early common law seem to have developed this into the legal principle that "by marriage the husband and wife are one person and the husband is that one." Sir William Blackstone declared that "Upon this principle of a union of person in husband and wife depend almost all the legal rights, duties and disabilities that either of them acquire by the marriage" and that "the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband under whose wing, protection and cover she performs everything": Book I, Chap. 15, Blackstone's Commentaries, 1 Lewis 411. In effect, the woman spouse was her husband's chattel, his property. She owed him duties much the same as did a servant his master. If he by injury to her suffered a loss of some feudal service owing to him by her, he and he alone - for she was too inferior a subject to have any such right, much less the privilege to assert it - was allowed to sue to recover, just as he would sue for injuries done to his cattle. He, for all technical purposes, owned her at common law and, consistent with that now universally rejected theory, he was accorded the right to recover for "loss of consortium". That the woman today is not regarded as she was at common law is too obvious for comment.

[ 401 Pa. Page 151]

The husband's right to recover on this theory is without present day justification. The historical fictions have been shattered. The pillars which for decades had been regarded as lending support to this monument to the lord are today so effectively undermined by remedial legislation which recognizes the status of the wife as equal to that of her spouse that, in an increasing number of jurisdictions, they are being razed rather than looked to for further and extended service. As stated in Kaczorowski v. Kalkosinski, 321 Pa. 438, 444, 184 Atl. 663 (1936), in speaking of the long established legal prohibition of tort actions between spouses, "When the policy behind a rule no longer exists, the rule should disappear." In this connection we note the following language of the Court of Appeals of New York in Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 151 N.E.2d 898, 176 N.Y.S.2d 354, 355 (1958): "To decide otherwise would be contrary to principle ... The argument that equality of the sexes calls for a change overlooks that the husband's right to damages for loss of consortium is based on outworn theory." Then, quoting from 18 Law & Contemp. Prob. 219, 229, the court adopting the language of Professor Jaffe continued: "'More persuasive is the argument that since the husband has an action, so should the wife. But his action is a fossil from an earlier era. It is one of a group of archaic actions based on the notion that the paterfamilias was alone competent to sue for losses suffered by the family unit ... When to the husband's action there is now added the wife's action for negligent injuries (which being emancipated she is entitled to bring) there is a danger of duplicating elements of damage. Ingenious efforts must be made to disentangle from the wife's recovery the constituents of the husband's cause of action. Indeed, the emancipation argues for the restriction or abolition of these

[ 401 Pa. Page 152]

    expiration of the Statute of Limitations, both the former and present husbands might have appeared in this case as parties-plaintiff with separate causes of action for medical expenses and loss of consortium suffered by each while married to the plaintiff-wife and resulting from her alleged injuries caused by the alleged negligence of the defendants. There does not appear to be any reason preventing such an inclusion of parties plaintiff if each of their actions were to be filed timely." This case relied on Orga v. Pittsburgh Railways Company, 155 Pa. Superior Ct. 82, 38 Atl. 391 (1944). There a woman was injured five weeks before her marriage to plaintiff. The lower court had charged the jury that the husband was entitled to damages, present negligence, for loss of consortium and the jury so found. No objection to this charge was made at the trial and the issue was held improperly raised for the first time on appeal to the Superior Court. But that court, referring to the husband's right to recover under those circumstances had timely objection been made, said at 85: "As to compensation for the loss of his wife's services, there is very respectable authority in other jurisdictions to support a verdict for that, too." This bit of dictum in Orga was specifically rejected by a court of inferior jurisdiction in Donough v. Vile, 61 Pa.D. & C. 460 (1947).

We hesitate the longer to reincarnate the right to sue for loss of consortium in the form for which contention is made here when we see this confusion raised, seemingly, to the third power by the following even more involved, complexities. A determination of what is meant by "consortium" is itself a problem, as evidenced by the fact that, as late as 1951, in the English case of Best v. Samuel Fox & Co., Ld., [1951] 2 K.B. 639, 657 Lord Justice BIRKETT, after reviewing the decision of the United States Court of Appeals in Hitaffer

[ 401 Pa. Page 154]

We have reviewed the cases cited to us by appellant from the jurisdictions allowing recovery under circumstances similar to the situation here. Our research has uncovered still other cases favorable to appellant: Hoekstra v. Helgeland, 98 N.W.2d 669, S.D. (1959); Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960). It is enough, without more, to say that we are unpersuaded by those opinions, each of which is an exhaustive treatise on the subject. Rather do we feel, as did Lord PORTER in Best v. Samuel Fox & Co., Ld. [1952], A.C. 716, 728 when he said: "Even if it be conceded that the rights of husband and wife (in this respect) ought to be equalized, I agree with the Lord Chief Justice that today a husband's right of action for loss of his wife's consortium is an anomaly and see no good reason for extending it." We cannot assent to the argument that since the status of a married woman is now, in all other respects, so improved as to render her equal with her husband, that this, in itself, establishes her right to a cause of action for loss of consortium. Rather do we share President Judge HENNINGER'S thoughts as expressed in Mlynek v. Yarnall, supra, in the following language: "If, as contended, the husband's right to recover for loss of consortium is based upon the wife's lowly status as a servant or as a chattel, then to grant the wife a right to so recover does not lift the wife to the status of her husband, but it reduces the husband to the outworn concept of the wife's lowly status. Rather than grant to the wife the right to damages for loss of consortium, the logical solution would be to terminate the husband's claim on the theory that the wife is no longer the servant and chattel."

Appellee argues that if we should grant the right to the wife there would follow attempts by others in an intimate relationship to assert similar causes of

[ 401 Pa. Page 156]

    action. In short, it is contended that if a wife can recover for injuries to her husband, then others - children, dependent members of households, possibly even business partners - should perhaps also be allowed to sue to recover for the inconveniences to which they were put by the injury. Indicative of the efforts made by others to recover on this theory are the following cases: Hill v. Sibley Memorial Hospital, 108 F.Supp. 739 (D.C. 1952); Halberg v. Young, 41 Hawaii 634 (1957); Meredith v. Scruggs, 244 F.2d 604 (9th Cir. 1957); Gibson v. Johnston, 166 Ohio St. 288, 144 N.E.2d 310 (1956); Erhardt v. Havens, Inc., 330 P.2d 1010 (1958); Turner v. Atlantic Coast Line Railroad Company, 159 F.Supp. 590 (N.D. Ga. 1958); Jeune v. Del E. Webb Construction Company, 77 Ariz. 226, 269 P.2d 723 (1954); Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154 (1935); Sisk v. Pressley, 81 F.Supp. 16 (E.D. S.C. 1948); Pinson v. Southern Ry., 85 S.C. 355, 67 S.E. 464 (1910); and, Pleasant v. Washington Sand & Gravel Company, 262 F.2d 471 (D.C. Cir. 1958). Recovery was allowed in none of the above cases. It would appear, however, that, with few exceptions, the arguments used on behalf of a married person in a consortium suit against the negligent third party could be urged with no less validity in actions against responsible tort-feasors brought by or on behalf of infant children of an injured party.

The fact that recovery is allowed in trespass to a wife against a defendant for criminal conversation or alienation of affections presents a situation which is not analogous to the matter here at issue and has not deterred courts from denying relief in cases of the type now before us. In Karchner v. Mumie, 398 Pa. 13, 156 A.2d 537 (1959), this Court recognized for the first time the right of a wife to recover damages for criminal conversation. That right is preserved to the wife in

[ 401 Pa. Page 157]

    many jurisdictions which disallow recovery by her as against a negligent defendant for loss of consortium. Said COHEN, L.J., in Best, supra, "... in the enticement cases intentional infringement of the rights of the consort is an essential ingredient in the cause of action. The remedy in that case may therefore be treated as a natural extension of the principle. ... Moreover, no injustice can be done to the defendant since, ex hypothesi, his action was malicious ... In cases such as the one before us, however, it is impossible to suggest any malice against the wife on the part of the defendant or any intentional interference with her right of consortium ... It seems to me, therefore, that it would be an extension of a line of decisions in itself anomalous if we were, in such cases as the present, to recognize a right of action in a wife corresponding to that which the courts have recognized as vested in the husband. ... True it is ... that this involves the recognition of a distinction between the respective rights of a husband and of wife which is contrary to current opinion; but it has never been held that the wife has any right of servitium from the husband, and an extension of the principle to actions by the wife seems to me to involve real hardship on a defendant who will have already paid damages to the husband, in assessing which, allowance will, I think, have been made for the impairment of his ability to perform his obligation to support his wife." The opinion of another Justice sitting in the same case reads, in part, as follows: "... if the husband's own right had first come in question as res integra today, it would probably have been negatived. As it is, the husband's right being deeply entrenched in authority and the wife's never having been affirmed, I think that the intervention of the legislature would be needed to produce equality either by abolishing the husband's cause of action or by retaining it and

[ 401 Pa. Page 158]

    conferring a similar cause of action on the wife. I do not believe that at present the wife has such a cause of action as is claimed. Whether she ought to is, of course, quite another question." Our thinking is in accord with this approach to the question presented. Believing the cause of action for "loss of consortium" to be an anachronism, we are unwilling to extend the rule allowing it to another line of cases. Accordingly, we hold that a married woman has no cause of action in Pennsylvania in trespass for the loss of her husband's consortium caused by the negligent act of a third party.

Mr. Justice BELL concurs in the result.

Disposition

The order of the court below is affirmed.

CONCURRING OPINION BY MR. JUSTICE BOK:

I concur in Mr. Justice Eagen's result and reasoning but wish to add a word because of the difficulty he mentions in determining what is meant by consortium. In the English case cited in his opinion, Best v. Samuel Fox & Co., Ld. (1952), A.C. 716, Lord GODDARD said, citing Bracton's De Legibus Angliae, Blackstone's Commentaries, and Holdsworth's History of English Law, " - and there are no books of higher authority - [they] all show that the action which the law gives to the husband for loss of consortium is founded on the proprietary right which from ancient times it was considered the husband had in his wife. It was in fact based on the same ground as gave a master a right to sue for an injury to his servant if the latter was thereby unable to perform his duties. It was an action of trespass for an invasion of the proprietary right which, arising from the status of villeinage or serfdom, a master had in his servant."

[ 401 Pa. Page 159]

I shouldn't care to extend to wives, in their current state of emancipation, any such notions as that about their husbands or give them a right necessarily based on them. Better even than equality in the right of consortium is thus to reveal its true basis in the hope that the unreality of the husband's right may become apparent in the light of the times and result in its abolition.

ING OPINION BY MR. JUSTICE MUSMANNO:

On December 28, 1958, Israel Neuberg was seriously hurt in an automobile accident, sustaining injuries to and about his head, neck, body, and upper and lower extremities. In addition, the violence of the impact brought about a heart condition and caused a cardiac neurosis. He instituted an action ...


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