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COURT OF APPEALS OF NEW YORK 1968.NY.42493 <>; 239 N.E.2d 897; 22 N.Y.2d 498 decided: July 2, 1968. PAULINE MILLINGTON, APPELLANT,v.SOUTHEASTERN ELEVATOR CO., INC., ET AL., RESPONDENTS Millington v. Southeastern Elevator Co., 28 A.D.2d 1095, reversed. Counsel Alfred S. Julien, Nathaniel Greenbaum and Helen B. Stoller for appellant. Jack Hart and Martin R. Cramer for Elmer E. Smith, respondent. Counsel Morris Zweibel for Goodrich Associates, Inc., respondent. Counsel John Nielsen for Southeastern Elevator Co., Inc., respondent. Counsel I. Sidney Worthman for Lindsay Park Housing Corp., respondent. Keating, J. Judges Burke, Breitel and Jasen concur; Chief Judge Fuld and Judges Scileppi and Bergan dissent and vote to affirm on the authority of and for the reasons given in Kronenbitter v. Washburn Wire Co. (4 N.Y.2d 524). Author: Keating

Millington v. Southeastern Elevator Co., Keating, J. Judges Burke, Breitel and Jasen concur; Chief Judge Fuld and Judges Scileppi and Bergan dissent and vote to affirm on the authority of and for the reasons given in Kronenbitter v. Washburn Wire Co. ( Author: Keating

 In 1965, Cyril H. Millington, the husband of the plaintiff, Pauline Millington, was 37 years old. He became completely paralyzed from his waist down as a result of an elevator accident. His wife has brought this action for loss of consortium basing her claim on the fact that her husband will spend the rest of his life as an invalid. She further alleges that this has caused a radical change in their marriage and that this circumstance was due to the defendants' negligence, breach of warranty and statutory violations.

Defendants moved to dismiss the complaint on the ground of legal insufficiency. The motions were granted on the authority of Kronenbitter v. Washburn Wire Co. (4 N.Y.2d 524). The Appellate Division unanimously affirmed without opinion. We granted leave to reconsider our position in Kronenbitter. The passage of statutes which have resulted in the legal emancipation of married women (General Obligations Law, § 3-301, subd. 1; § 3-301, subd. 2; § 3-313; Domestic Relations Law, §§ 50, 61, 231; Real Property Law, §§ 11, 302), as well as those enactments which have imposed equal obligations and responsibilities upon women including the requirement of supporting a husband (Domestic Relations Law, § 32; Social Services Law, § 101) have revolutionized the legal status of married women. Recently, discrimination on the basis of sex was proscribed (U. S. Code, tit. 42; § 2000e et seq.) These legal changes are, of course, a reflection of the movement of society generally toward equality between the sexes, and it continues without surcease.

As long ago as 1889, this court wrote: "[The husband's] right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband" (Bennett v. Bennett, 116 N. Y. 584, 590). Although in Kronenbitter we acknowledged this development in the law, nevertheless we refused to recognize the wife's right to maintain an action for loss of consortium on two grounds. First, there is an alleged danger of duplication of damage. Second, it is claimed that the cause of action is based on outworn theory. Quoting Professor Jaffe, the opinion described the action as "a fossil from an earlier era" (Damages for Personal Injury: The Impact of Insurance, 18 Law & Contemp. Prob. 219, 229).

Consortium, it is insisted, includes the loss of support and, since that damage is already recovered by the husband in the form of recovery for lost earnings, there may be a double recovery. Separating the common elements of the two items of damage would thus unduly confuse a jury. Aside from the fact that the jurisdictions which permit recovery by the wife have indicated no difficulty with the double recovery aspect, a proper charge by the trial court would obviate the entire problem since it would not have to mention the element of support. "Simple mathematics will suffice to set the proper quantum. For inasmuch as it is our opinion that the husband in most cases does recover for any impairment of his duty to support his wife, and, since a compensable element of damages must be subject to measure, it is a simple matter to determine the damages to the wife's consortium in exactly the same way as those of the husband are measured in a similar action and subtract therefrom the value of any impairment of his duty of support." (Hitaffer v. Argonne Co., 183 F. 2d 811, 819, cert. den. 340 U.S. 852.)

Only this past year, the Supreme Court of Wisconsin in Moran v. Quality Aluminum Casting Co. (34 Wis. 2d 542) quoting the Illinois Supreme Court in Dini v. Naiditch (20 Ill. 2d 406, 427) rejected the double recovery argument (34 Wis. 2d 558): "'Any conceivable double recovery * * * can be obviated by deducting from the computation of damages in the consortium action any compensation given her husband in his action for the impairment of his ability to support * * * [Since] the possibility of double recovery can be eliminated by this simple adjustment of damages, it should not constitute a basis for denying [the wife's] action, which includes many elements which are in no way compensable in the husband's action.' (Emphasis added.)" Even the critics of the extension of the rule have conceded that the problem is minimized by a joint trial of both the husband's and wife's causes of action.

Since in New York, it is rare, if not unknown, to try a husband's consortium action separately from his wife's negligence action, the fear of duplicative damages is wholly unsupportable. Furthermore, if any plaintiff should attempt to exploit the possibility of double recovery by bringing separate actions, motions to consolidate would quickly resolve that difficulty.

Turning then to the contention that the action is a dated one -- "an anachronistic remnant of the wife's common law inability to sue and recover damages for her own injuries" (Igneri v. Cie de Transports Oceaniques, 323 F. 2d 257, 264), it has been argued that the way to eliminate the inequality is to remove the husband's cause of action. "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 injury 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" (Kronenbitter v. Washburn Wire Co., supra, p. 527).

The concept of consortium includes not only loss of support or services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more. (Montgomery v. Stephan, 359 Mich. 33, 36; Moran v. Quality Aluminum Casting Co., supra, 34 Wis. 2d, p. 557.) Consequently the interest sought to be protected is personal to the wife. It is the interest which may have turned a happily married woman into a life-long nurse and deprived her of the opportunity of rearing children. Disparagingly described as "sentimental" or "parasitic" damages, the mental and emotional anguish caused by seeing a healthy, loving companionable mate turned into a shell of a person is real enough. To describe the loss as "indirect" is only to evade the issue. The loss of companionship, emotional support, love, felicity and sexual relations are real injuries. The trauma of having to care for a permanent invalid is known to have caused mental illness. There may not be a deterioration in the marital relationship, but it will certainly alter it in a tragic way. Even in the case of a husband the "sentimental" damages may predominate over the loss of support or material element. Thus to describe these damages as merely parasitic is inaccurate and cruel. The Supreme Court of Michigan effectively answered the "fossil" argument when it wrote in Montgomery v. Stephan (359 Mich. 33, 46, 48-49, supra):

"We come, then, as we must ultimately in every case, unless we are to continue to utilize fictions, or unless we are to dispose of the case on a narrow point of procedure or pleading, to a balancing of interests. On the one hand we have a wife deprived of the affection of her husband, his companionship, his society, possibly deprived even of her opportunity to bear sons and daughters. On the other, we have a defendant, whose liability because of his act must involve the violation of a duty of care with respect to it, and, furthermore, whose liabilities as a result of his negligent act must have some reasonable limitation. So analyzed, we see the problem not as a unique and peculiar historical anomaly but as a part of a much larger pattern, as a part of a clearly discernible movement in the law. * * *

"The gist of the matter is that in today's society the wife's position is analogous to that of a partner, neither kitchen slattern nor upstairs maid. Her duties and responsibilities in respect of the family unit complement those of the husband, extending only to another sphere. In the good times she lights the hearth with her own inimitable glow. But when tragedy strikes it is a part of her unique glory that, forsaking the shelter, the comfort, the warmth of the home, she puts her arm and shoulder to the plow. We are now at the heart of the issue. In such circumstances, when her husband's love is denied her, his strength sapped, and his protection destroyed, in short, when she has been forced by the defendant to exchange a heart for a husk, we are urged to rule that she has suffered no loss compensable at the law. But let some scoundrel dent a dishpan in the family kitchen and the law, in all its majesty, will convene the court, will march with measured tread to the halls of justice, and will there suffer a jury of her peers to assess the damages. Why are we asked, then, in the case before us, to look the other way? Is this what is meant when it is said that justice is blind?"

In Deems v. Western Md. Ry. Co. the Maryland Court of Appeals stated (247 Md. 95, 108-109):

"[There] is, in a continuing marital relationship, an inseparable mutuality of ties and obligations, of pleasures, affection and companionship, which makes that relationship a factual entity * * * We see no valid reason why that concept should not be extended to permit recovery for wrongs negligently caused to the legal unity through the physical injury of either spouse.

"That both spouses suffer when the marriage relationship is adversely affected by physical injury to either is a fact evidenced, if not by logic, by human experience since the institution of marriage became a basic part of our mores * * * Today, at least, it is unquestioned that the desire to have children and the pleasures of sexual intercourse are mutually shared. If the husband's potency is lost or impaired, it is both the man and woman who are affected. If the physical injury is to the wife, she sustains the same kind of loss in the marital relation as he does in the converse situation."

Thus the "consortium" interest to be protected here does not rest on any medieval theory but on the real injury done to the marital relationship. The "wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband" (Prosser, op. cit., p. 917). Once it is recognized that consortium now represents the interest of the injured party's spouse in the continuance of a healthy and happy marital life and that the cause of action seeks to compensate for the injury to that relationship, it becomes evident that the cause of action is not a relic. For this reason we have resolved to overrule ...

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