Lombardo v. DF Frangioso & Co., Inc. ( 1971 )

Cutter, J.

The declaration is in two counts, one against each of two defendants. In each count the plaintiff, a wife, alleges that, as a consequence of the negligent conduct of the defendant named in that count, the plaintiff’s husband was injured, “was prevented from performing . . . his occupation and . . . from continuing a normal marriage relationship with the [plaintiff; and that as a result . . . [the defendant negligently interfered with the [plaintiff’s marriage relationship with her husband, whereby the [plaintiff suffered loss of her husband’s services, society, affection, companionship, relations, and consortium, all to her great damage.” A Superior Court judge sustained a demurrer based on the ground that “[po cause of action exists for the matter set forth in the . . . declaration.” The plaintiff appealed.

Since Feneff v. New York Cent. & H. R. R.R. 203 Mass. 278, 282, was decided in 1909, it has been generally ae-cepted as Massachusetts law that neither spouse has any right of recovery for lack of consortium or loss of marital and other services growing out of a defendant’s negligent injury to the other spouse. See Bolger v. Boston Elev. Ry. 205 Mass. 420, 421; Whitcomb v. New York, N. H. & H. R.R. 215 Mass. 440, 442; Gearing v. Berkson, 223 Mass. 257, 260-261; Cassidy v. Constantine, 269 Mass. 56, 57-58; Rodgers v. Boynton, 315 Mass. 279, 281-282; Alden v. Norwood Arena, Inc. 332 Mass. 267, 275-276; Thornton v. First Natl. Stores, Inc. 340 Mass. 222, 226-227; Prosser, Torts (3d ed.) §§ 118, 119, esp. p. 913, fns. 83, 84 and p. 917, fn. 15; Martin and Hennessey, Automobile Law (2d ed.) § 251. We interpret Erickson v. Buckley, 230 Mass. 467, 470-471, as recognizing at most the liability of a defendant (who had negligently caused injury to a wife) to compensate a husband (bound to support his wife and care for her) for medical and other expense for the wife’s care to which the husband had' been put by reason of the injury to the wife. For such actual expense a husband may still recover consequential damages. See, however, the Cassidy case, 269 Mass. 56, 57-60, supra. See also Thibeault v. Poole, 283 Mass. 480, 483-487; annotation, 21 A. L. R. 3d 1113, 1117.¹

Prior to the Feneff case, it had been indicated or held in Kelley v. New York, N. H. & H. R.R. 168 Mass. 308, 311-312, Duffee v. Boston Elev. Ry. 191 Mass. 563, 564, and Hey v. Prime, 197 Mass. 474, 476, that a husband could recover for loss of consortium. The Kelley case, however, was expressly overruled in the Feneff case, 203 Mass. 278, 282. A majority of the court are of opinion that, in Massachusetts under or by extension of the general principles of the Feneff case and the decisions following it (already cited), there may be no recovery, based on negligence, for loss of a spouse’s services or for loss of consortium, apart from a husband’s right (based upon his duty to support) to reimbursement of medical and closely related expenses incurred for the care of an injured wife. The demurrer was correctly sustained.

We are aware that there is much authority in the United States which differs from the Massachusetts rule.² We regard our rule, however, as having been well established throughout the more than sixty years since the Feneff decision. If a rule of such long standing is to be changed, we are of opinion that any modification should be accomplished by the Legislature and not by judicial decision. A change of this type by judicial decision is not as easily applied (as in the case of legislation) prospectively or after sufficient notice of a forthcoming change to ensure adequate insurance arrangements. If applied retrospectively to pending cases or to past accidents, the consequences of a change may be unfair to defendants or to their indemnitors.

We note that the Feneff case is discussed in the Forty-sixth Report of the Judicial Council (1970) Pub. Doc. No. 144, pp. 76-78, in the course of its consideration of 1970 House Bill No. 2364 (a proposed legislative overruling of the Feneff case). The Judicial Council has recommended strongly that no bill allowing either spouse to recover for lack of consortium be enacted.³ Plainly there is not unanimity that the rule growing out of the Feneff case should be altered in any respect. In the circumstances we are of opinion that the matter is not one appropriate for revision by judicial decision.

Order sustaining demurrer affirmed.

1 The rule as to a spouse’s recovery for certain intentional (as contrasted with negligent) interference with the marital relationship is different. Only negligence, however, is here alleged. See Bigaouette v. Paulet, 134 Mass. 123, 125-126; Nolin v. Pearson, 191 Mass. 283, 285-290; Whittet v. Hilton, 335 Mass. 164, 167-169; Saeli v. Mangino, 353 Mass. 591, 592-593; Kaye v. Newhall, 356 Mass. 300, 303. See also de Antonio v. Solomon, 42 F. R. D. 320, 322-323 (D. Mass.).

2 See Restatement 2d: Torts, §§ 693 and 695 (Tent, draft No. 14, April 15, 1969) and cases cited in reporter’s notes, esp. p. 14, par. d. See also Prosser, Torts (3d ed.) §§ 118-119. Our attention was invited to many authorities in other jurisdictions by the plaintiff’s comprehensive brief.

3 The statement in the Judicial Council report concludes (emphasis supplied): “It cannot be denied that damages for loss of consortium of the wife or damages for loss of ‘proper future companionship, society, and comfort’ would be by far the most speculative variety of damages under the sun. Because a wife (or a husband) may now recover consequential damages under G. L. [c.] 231, § 6A, and because a wife may now recover for all of her injuries and damages in an action brought by, herself, and because of the fact that damages for loss of consortium are incredibly speculative, we do not recommend this bill in any form.”