#### MRS. W. B. HIPP v. E. L. DUPONT de NEMOURS AND COMPANY et al.

(Filed 14 September, 1921.)

1. Judgments — Estoppel—Parties—Privies—Actions.

A judgment in an action is not effective as a bar or estoppel in any other action unless between the same parties or privies, for the same cause of action.

a. Same — Married, Women — Husband and Wife — Statutes—Negligence— Torts.

Under the married woman’s act, the wife is not a necessary party or privy to her husband’s action to recover damages for a personal injury negligently inflicted on him by a third person, and an adverse judgment rendered in the court of another state, wherein she was not a party, does not bar her recovery in her action brought in the courts of this State for the damage she has independently and individually sustained, which was proximately caused by the same injury alleged to have been negligently inflicted on her husband.

3. Married Women — Husband and Wife — Actions—Negligence—Torts— Measure of Damages — Mental Anguish.

Under the married woman’s act, the wife may recover such damages as she has proximately sustained independently of those caused alone to her husband in tort or by the negligence of a third person, including expenses paid by her made necessary by her husband’s injuries, services she has performed in nursing and caring for him, loss of support and maintenance, and of consortium, and for mental anguish in proper instances.

4. Decisions of Sister States — Dissenting Opinion — Authority.

The decisions of the courts of other states are entitled only to the persuasive weight given on account of the force or correctness of their reasoning, and this may be accorded to the force or correctness of the reasoning of a dissenting opinion' therein filed.

5. Actions — Marriage—Married Women — Husband and Wife — Dependents — Statutes—Constitutional Daw.

The cause of action for damages separately and independently and proximately caused the wife arising from the injury inflicted on her husband by the negligent act of a third person, arises from the relation*10ship created by the contract of marriage as now recognized by our Constitution and statutes, and does not extend to the children of the marriage or other dependent relatives.

Alien and Stacy, JJ., concur in result.

Appeal from Harding, J., at April Term, 1921, of MeckleNBURG.

Tbe plaintiff, wbo is the wife of ~W. B. Hipp, brings this action alleging that her husband, while working as an employee of the defendant company in Hopewell, Virginia, was “seriously, painfully and permanently injured as a proximate result of the carelessness and negligence of the defendants,” setting out the manner in which he was injured and the extent of such injuries and the expense, and that under the law of Virginia, which is set out, the plaintiff was entitled as a married woman to sue and be sued as if she were unmarried, and to own and control her property as fully as if she had remained single, and that neither she nor her husband have received anything whatever from the defendants in the way of damages for the serious injuries inflicted on him; and that her husband brought action in Virginia, but notwithstanding three separate jury verdicts afforded him the Court of Appeals of that State rendered judgment against him upon demurrer to the evidence; that the plaintiff is entitled, notwithstanding, to recover in this jurisdiction, she having obtained service upon the defendants for the personal injuries inflicted on her by the injury to her husband. The defendants demur from the ground that it appears upon the face of the complaint that judgment has been rendered in Virginia that her husband was not entitled to recover, and that it appears inferentially therefore that under the law of the State of Virginia she has no action for the loss of her husband’s company, for damages to her consequent upon injury sustained by him caused by the negligence of a third person, where the husband’s right of action, if any, is barred. The judge overruled the demurrer and the defendants appealed.

J ohn M. Robinson and Hamilton O. J ones for plaintiff.

W. S. Beam, 0. A. Cochran, and V. S. Thomas for Dupont de Nemours & Company.

Clarkson, Taliaferro & Clarkson and H. A. Stillwell for defendants.

Claek, C. J.

The demurrer admits all facts sufficiently pleaded, and therefore we must take it that the plaintiff’s husband was “seriously, painfully and permanently injured as the proximate result of the carelessness and negligence of the defendants,” and that by reason thereof the plaintiff has suffered shock which has impaired her nervous system, impaired and permanently injured and weakened her physical and *11mental condition, and tbat she has suffered greatly from loss of sleep, worry and anxiety on account of the condition of her husband in watching over and earing for him, causing her to devote her entire time to nursing and caring for him, while at the same time the burden of maintaining the family fell upon her, entailing heavy cost and expense, and that she has been forced to pay out large sums of money to hospitals, doctors, nurses and medical expenses, and that by reason of said injuries she has been deprived of the support and maintenance which her husband would have given her, and has suffered mental anguish by being forced to witness the suffering endured by her husband whereby her own nerves and health have been seriously and permanently shocked, weakened and impaired, and that by reason of the physical and mental condition of her husband she still continues to suffer in mind and body, and has been denied the care, protection, consideration, companionship, aid and society of her said husband and the pleasure and assistance of her husband in escorting her to visit friends and relatives, and has been required to remain at home for long periods of time denying herself to friends and relatives, and besides has had entailed upon her the fatigue of nursing and caring for him and incurred expenses, and has paid large sums on that account. These matters are set out more at length in the complaint, but this is a summary of the grounds of her action, all of which allegations of facts are admitted as pleaded by the demurrer. The demurrer in effect presents two questions of law upon these, facts:

1. The first is that the judgment against her husband in Virginia, Dupont v. Hipp, 123 Va., 42, bars any right of action which she might have for damages for grief, mental anguish, labor and expense devolving upon, her by the disability of her husband and the loss and comfort of his society.

2. The second is that upon the facts admitted the wife is not entitled to maintain this action.

As to the first ground of demurrer, if the wife has a cause of action we do not think the demurrer can be sustained. She was not a party to the action brought by her husband, and she is not estopped by the judgment as to any relief she might be entitled to. It may be that upon the trial of this action an entirely different state of facts as to the manner in which the husband was injured might be developed, either by additional evidence or by the estimate placed upon the evidence by the jury. She was neither a party nor a privy to that action.

In Laskowski v. People’s Ice Co. (Mich.), 2 A. L. R., 586, it was held that “A judgment in favor of a wife in an action to recover damages for injuries to her person is not conclusive upon the question of defendant’s negligence and absence of her contributory negligence, in an action *12by ber busband for tbe damages resulting to bim from sucb injuries.” Of course tbe reverse must be true since, as beld in tbat case, under tbe Married Woman’s Act be was not a necessary or proper party to tbe action by bis wife to recover damages for injuries to ber person, and was not in fact a party. See note to tbat case (2 A. L. R., 592), citing many cases tbat neither tbe judgment in sucb ease, nor a settlement by compromise on tbe part of tbe wife would affect tbe husband’s right to recover for tbe damages sustained by bim, quoting among otbers R. R. ¶. Kinman, 182 Ely., 597.

But tbe second ground of demurrer presents an entirely different question. At common law tbe busband could maintain an action for tbe injuries sustained by bis wife for tbe same reason tbat be could maintain an action for injuries to bis horse, bis slave or any other property; tbat is to say by reason of tbe fact tbat tbe wife was bis chattel. This was usually presented in tbe euphemism tbat “by reason of tbe unity of marriage” sucb actions could be maintained by tbe busband. But singularly enough this was not correlative and tbe wife could not maintain an action for injuries sustained by ber busband.

Tbe reason is thus frankly stated by Blackstone: “We may observe tbat in these relative injuries, notice is only taken of tbe wrong done to tbe superior of tbe parties (busband) injured by tbe breach and dissolution of either tbe relation itself, or at least tbe advantages accruing therefrom; while tbe loss of tbe inferior (tbe wife) by sucb injuries is totally unregarded. One reason for this may be this: tbat tbe inferior bath no kind of property in tbe company, care or assistance of tbe superior as tbe superior is beld to have in those of tbe inferior; and therefore tbe inferior can suffer no loss or injury.” 3 Blackstone’s Commentaries, 143.

By tbe married women’s provision in tbe Oonstitution of 1868, Art. S, sec. 6, this conception of ownership by tbe busband whereby upon marriage all tbe personal property of tbe wife became tbe property of tbe busband and be became tbe owner of ber realty during bis lifetime, was abolished. Tbe courts in this State continued for a long while, notwithstanding, to bold tbat tbe busband could recover bis wife’s earnings and tbe damages for injuries done ber; but by tbe act of 1913, now O. S., 2513, it was provided tbat ber earnings and damages for torts inflicted upon ber were ber sole and separate property for which she could sue alone.

It follows therefore tbat tbe busband cannot sue to recover bis wife’s earnings, or damages for torts committed on ber, and there is no reason why she can sue for torts or injuries inflicted on ber busband. Tbe law has never authorized tbe wife to maintain sucb action for torts sustained by tbe busband. We agree with tbe learned counsel for tbe *13plaintiff that if tbe busband could maintain an action to recover damages for torts on tbe wife sbe should be able to maintain an action on account of torts sustained by tbe busband. Sucb right of action if it existed in favor of tbe busband should exist in favor of tbe wife. It should be in favor of both, or neither, but in view of tbe Constitution of 1868 and our statute on tbe subject, we think that sucb action cannot be maintained by either on account of tbe injury to tbe other.

So'far as injuries to tbe busband are concerned and tbe damages be has sustained, whether tbe plaintiff recovers or fails to do so tbe verdict and judgment are conclusive. Tbe wife certainly cannot recover a second time for the injuries of tbe busband, who alone can sue for them (or in case of wrongful death, bis personal representative), but tbe action of tbe wife is not for tbe injuries to tbe busband, though formerly tbe busband was allowed to recover damages for tbe injuries sustained by tbe wife because they were bis property. Price v. Electric Co., 160 N. C., 450. That is now swept away.

Tbe cause of action for tbe wife in this case is not for tbe injuries to tbe busband, bpt for tbe injuries to herself which are thus summed up in tbe brief for tbe plaintiff in this action:

1. Expenses paid by her, made necessary by her husband’s injuries.

2. Services performed in nursing and caring for him.

3. Loss of support and maintenance.

4. Loss of consortium.

5. Mental anguish.

Though tbe busband can no longer recover for tbe damages which bis wife has sustained as property belonging to himself, be may still recover for tbe damages sustained by him by reason thereof which have been held to include expenses incurred, deprivation of society and loss of aid and comfort.

In Kimberly v. Howland, 143 N. C., 398, tbe plaintiff’s wife received a serious injury by reason of the defendant’s negligence. Tbe Court, (page 405) said: “It is contended that tbe busband has sustained no injury, and as to him tbe motion to nonsuit should have been allowed. It seems to be well settled that where tbe injury to tbe wife is sucb that' tbe busband receives a separate loss or damage, as where be is put to expense, or is deprived of tbe society or tbe services of bis wife, be is entitled to recover therefor, and be may sue in bis own name.”

In Bailey v. Long, 172 N. C., 661, decided since chapter 13, Laws 1913, tbe plaintiff bad taken bis wife to tbe defendant’s hospital. * By reason of tbe defective condition and construction of said hospital, bis wife contracted pneumonia and died. Tbe plaintiff brought the action for damages suffered by him. Mr. Justice Walker, for a unanimous Court, held that tbe plaintiff could recover for expenses which accrued *14to him for nursing and otherwise, and said: “In addition, we think plaintiff can recover damages for the mental sufferings and injury to his feelings in witnessing the agony and suffering of his said wife, while lingering with such cold and pneumonia, and in the act and article of death resulting therefrom.”

We do not think that the husband could now recover compensatory damages for her physical and mental anguish nor for the value of her services, which are matters purely personal to her, and for which she alone can recover, though formerly these were the basis for an action by the husband. As he can no longer sue for earnings, of course he is not entitled to recover the value of her services. But the great weight of authority sustains the proposition that under the modern statutes enlarging the rights of married women, the husband is not deprived of his right to recover the damages which he himself sustains and which S.re the direct consequences of the injury to the wife. He cannot sue for the injuries she sustained, but for those which accrued to himself as the direct and not the remote consequences of such wrongful act-of the defendant. 13 R. C. L., sec. 642; 21 Cyc., 1527.

In Holleman v. Harward, 119 N. C., 150, where the defendant had sold the plaintiff’s wife laudanum or similar drugs despite the plaintiff’s protests, the Court held that the husband could recover for loss of companionship and loss of services resulting therefrom. While the statute now does not permit the husband to recover for loss of services, which must be recovered solely by the wife, the loss of the companionship of his wife is a loss purely personal to him and the direct consequence of the wrong of the defendant. For this the wife could not recover, and being the direct and not remote consequence of the wrongful act, the husband is entitled to his action.

In Flandermeyer v. Cooper, 85 Ohio State, 327, where the defendant had sold drugs to the husband over the wife’s protest, it was held in exact analogy to the above case from this Court, that she could recover for the damages thus resulting to her. The Court said: “A statutory right cannot change except by action of the lawmaking power of a State. But it is the boast of the common law that: ‘Its flexibility permits its ready adaptability to the changing nature of human affairs.’ So that, whenever, either by the growth or development of society, or by the statutory change of the legal status of any individual, he is brought within the principles of the common law, then it wall afford to him the same relief that it has heretofore afforded to others coming within the reason of its rules. If the wrongs of the wife are the same in principle as the wrongs of the husband, there is now no reason why the common law should withhold from her the remedies it affords the husband.”

*15Tbe Court in that case aptly cited from Cooley on Torts (3 ed.), 477 : “Upon principle, this right in the wife is equally valuable to her as property, as is that of the husband to him. Her right being the same as his in kind, degree, and value, there would seem to be no valid reason why the law should deny her the redress which it affords to him. . . . The gist of the action is the loss of consortium, which includes the husband’s society, affection, and aid.”

And also uses this language: “There can be no reasonable contention .but that the wife suffers the same injury from the loss of consortium as the husband suffers from that cause. His right is not greater than hers. Each is entitled to the society and affectjon of the other. The rights of both spring from the marriage contract, and in the very nature of things must be mutual, and while this was always true of the marriage relation, yet there was a time in the history of our jurisprudence when the legal status of the wife was such that she could not, at common law, maintain an action of this character. Now her legal status is the same as that of her husband. She has the same right to the control of her separate property, the same right to sue in her own name, and, in a word, is in the full enjoyment of every right that her husband enjoys, so that she has come clearly within the principles of the common law that allow a right of action by the husband for damages for the loss of the consortium of his wife. Either we must hold that the common law is fixed, unchangeable, and immutable, that it possesses no such flexibility as will permit its ready adaptability to changing conditions of human affairs, or that when every reason and every theory for denying the wife the same rights as the husband has entirely disappeared from our jurisprudence, that she is now equally entitled with her husband to every remedy that the common law affords, and we have no hesitation in adopting the latter view.”

To the same purport is Jaynes v. Jaynes, 39 Hun. (N. Y.), 40. The plaintiff’s counsel adds: “Why should the husband be allowed a recovery in cases of this character and the wife, who suffers in the identical same way, be denied a recovery? They stand before the same altar; they enter into the same' contract.” Necessarily their rights are the same at the bar of justice.

In Bernhardt v. Perry, 276 Mo., 612, in discussing this identical question, it was said by the able Chief Justice Bond of that Court as follows in speaking of the rights of the wife: “She could have had no recovery when she occupied the status of a married woman at common law; for then her legal existence was merged in that of her husband. But under the Married Woman’s Acts in this State, beginning in 1875, and culminating in 1889, with slight amendments thereafter, a wife is *16to all intents and purposes a legal entity distinct from ber husband, and capable of contracting and being contracted with and suing and being sued, as fully as if she were an unmarried woman and sui juris. While the principles of the common law previous to her statutory emancipation debarred the wife from any legal redress in eases like the present, they nevertheless recognized fully the injury to her personal rights caused by the acts set forth in the petition, and they affirmed such rights to be the same as those which the husband would have been deprived of had the injury in question been inflicted upon the wife (Flandermeyer v. Cooper, 85 Ohio St., 327; Holleman v. Harward, 119 N. C., 150); and, though sanctioning a full right to recover in such cases on the part of the husband, they denied it to the wife, although an equal sufferer, because feudalism had decreed that she was a legal nonentity and incapable of maintaining any action for the violation of her rights as a wife caused by wrongful injuries inflicted upon her husband.”

Further he says: “The injury suffered by a husband from the loss of the consortium of his wife is no more direct or immediate than that sustained by her from the loss of his society, aid, and affection. Hence, there is no logical basis for the reason upon which some of the adverse rulings are based, that in such eases the injury sustained by the wife is not directly and proximately caused by the wrongful act preventing her husband from giving her the means of a livelihood, which it is his duty to provide, and from performing his conjugal duties.”

And again: “The reasons given in the decisions against the right of a wife to recover from the material injury inflicted on her by a negligent act destroying the power of her husband to labor for her support, and' thereby imposing upon her the task of supporting him, and which renders him unable to perform the duties of a consort, are utterly inadequate to support the conclusions ■ reached. It will be noted in all of these eases that they are rested upon the lack of suable capacity of the wife, or upon the rules of the common law disabling her as against her husband to acquire title to the money awarded as damages for wrongful injury to him, wherefore the hobgoblin of a foolish consistency impelled the common law to adjudge she eoiild not recover for an injury to her • personal rights so caused, since the instant a recovery was had it would belong to the husband. Neither of these reasons can exist under the specific provisions of the law governing married women; for, as has been shown, the wife may now sue as a feme sole, and the awards of any violation of her personal rights belong to her, and not to the husband.”

It is true that these citations from the distinguished Chief Justice are in a dissenting opinion (in which Judge Williams concurred), but the decisions in other Courts than ours are not authority and are entitled *17only to tbe persuasive weight given them on account of tbe force and correctness of tbe reasoning therein, and therefore if there is correct and forceful reason in a dissenting opinion from another state it should command exactly the same consideration as if it were made in the majority opinion.

One of the chief grounds for the plaintiff’s recovery is the loss of consortium which was formerly pleaded by the phrase, “per quod consortium a/misit.” This formerly lay only in behalf of the husband, but now the term has been extended to give the wife, and with more reason, the same ground of action. The present state of the law is thus fully stated under the heading of Consortium, 12 Corpus Juris, 532, with full citations in the notes.

“In its original application the term was used to designate a right which the law recognized in a husband, growing out of the marital union, to have performance by the wife of all those duties and obligations in respect to him which she took upon herself when she entered into it; the right to the conjugal fellowship of the wife, to her company, cooperation, and aid in every conjugal relation; fellowship and assistance of the wife; comfort in her society in that respect in which a. husband’s right is peculiar and exclusive; conjugal society, affection and. assistance of the wife. The term, however, has developed to include the-right of the wife to the society and comfort of the husband, and is now' used interchangeably to denote the affection, aid, assistance, companionship and society of either spouse; and as thus employed the term has been defined as those duties and obligations which by marriage both husband and wife take upon themselves toward each other in sickness and health, conjugal affection; conjugal fellowship; conjugal society and assistance; the conjugal society arising by virtue of the marriage contract; the consort’s affection, society, or aid; the person, affection, assistance and aid of the spouse. Loss of services as well as society and affection is included in the legal meaning of the loss of consortium

There are decisions from other courts denying the relief to the wife in cases of this character. Such decisions are necessarily dependent upon two factors: (1) The legislation in reference to the rights of married women in the particular jurisdiction; (2) the attitude of the court in giving either a liberal or restricted construction to new legislation of the nature of that in this State. As was well said by Chief Justice Bond in the above case, “So prone are the courts to cling to consuetudi-nary law, even after the reason for the custom has ceased or become a mere memory, that it has required hundreds of years to obtain the meed of justice for married women.”

*18Tbe reasons formerly advanced for a denial to tbe wife of a recovery for damages sustained by ber as a direct result of tbe injury to bim and wbicb are over and above and distinct from tbe damages wbicb could be recovered by tbe busband in an action by bimself were threefold:

1. Tbe merger of ber identity into tbat of her busband.

2. Her incapacity to sue.

3. Tbe right of ber busband to recover full damages for bis diminished earning capacity, with no corresponding right possessed by ber.

Neither of tbe first two grounds are now valid in this Státe. It is urged, however, tbat tbe plaintiff after be bad obtained a recovery is presumed to have obtained full pecuniary compensation for all tbe injuries sustained by bim, and of course if be failed to recover, no action can be maintained by tbe wife. This proposition is correct if tbe action of tbe wife is for tbe damages for wbicb tbe busband could maintain an action, but tbe facts as admitted by this demurrer are tbat be was injured by tbe negligence of tbe defendants and tbat tbe wife sustained damages wbicb, though flowing from tbe injuries to ber busband, are purely injuries to herself and for wbicb tbe busband could not have maintained an action. She is therefore not barred by tbe judgment, favorable or unfavorable, in tbe action brought by ber busband. A judgment in an action is not effective as a bar or estoppel in any other action unless between tbe same parties and for tbe same cause of action. Tbe present action is not between tbe same parties nor for tbe same •cause of action as in tbe litigation between tbe busband and tbe defendants.

It has always been held tbat tbe husband’s action for damages sustained by bim on account of injuries to ber is not barred by judgment in favor of tbe same defendant in an action brought by tbe wife. See cases cited in tbe notes to 2 A. L. R., 592. Of course tbe reverse of tbe proposition is true; 13 R. O. L., 461.

As already stated, tbe rights wbicb tbe wife is asserting in this action are entirely separate and distinct from tbe grounds of recovery asserted by tbe husband in bis action. In paragraph 12 of tbe complaint is tbe following allegation wbicb is admitted by tbe demurrer to be true, “Tbat by reason of tbe sudden and fearful injury of ber busband, as above stated, and by reason of being forced to look upon bim in bis horribly mutilated condition, she was shocked and frightened to such an extent tbat ber entire nervous system was impaired and undermined and left permanently injured and weakened, and ber physical and mental condition was permanently injured and impaired.”

In Kimberly v. Howland, 143 N. C., 398, tbe Court said: “¥e think tbe general principles of tbe law of torts support a right of action, *19for physical injuries resulting from negligence, whether willful pr otherwise, none the less strongly because the physical injury consists of a wrecked nervous system instead of lacerated limbs.” This was cited and approved by Walker, J., in May v. Tel. Co., 157 N. C., 422.

While the wife cannot recover for any damages for which the husband might have recovered (or his personal representative in the case of a wrongful death), we think that she could' recover for those injuries which were sustained, by her and which being personal to her for which the husband could not have recovered in his action. 15 A. & E. (2 ed.), 861, which is cited May v. Tel. Co., 157 N. C., 423.

We will not go more fully into the elements of damages which can be considered by the jury when the action goes back for a new trial.

It is objected by the defendant in this case that if such action can be maintained by the wife that it can be sustained on the .part of the children or other dependent relatives. That plea has never been found good when the action has been brought by the husband, and of course it cannot avail when the action is by the wife upon the same state of facts. The wife’s cause of action arises from the nature .of the relationship created by the contract of marriage as now recognized by our Constitution and the laws replacing the former status under which, by the common law, the husband was the sole personage. Such plea has not been held valid in an action for crim condor for alienation of affections or in any other case in which an action by either husband or wife has been brought for injury to the plaintiff (whether husband or wife) which were personal to the plaintiff therein and for which' the other party could not maintain an action. It does not depend upon the fiction of loss of services of the other party to the marriage, but is based upon the ground that the party bringing the action (whether husband or wife) has been directly injured by the wrongful conduct of the defendant.

It is sufficient to say that the plaintiff has a cause of action for those injuries which were sustained by her and which are personal to herself and the direct and not the remote consequences of the negligence of the defendants, which is admitted by the demurrer in this case and the judgment overruling-the demurrer must therefore be

Affirmed.

AlleN and Stagy, JJ., concur in result.