RODRIGUEZ v. BETHLEHEM STEEL CORPORATION (1973)

Richard Rodriguez and his wife Mary Anne Rodriguez, the appellant herein, filed a first amended complaint for damages in September, 1971. The various causes of action set forth arose out of allegedly very serious injuries suffered by Richard, the husband, on September 21, 1970. The complaint consists of one cause of action alleged on behalf of Richard. He claims damages for personal injuries, past and future medical expenses and past and future loss of earnings and earning capacity.

A second cause of action, pleaded only by Mary Anne, the wife, claims damages to her for loss of consortium, loss of Richard's services and loss of her own earnings. This last item of claimed damages is alleged to have resulted from the fact that the injuries to Richard made it necessary for Mary Anne to render ‘medical and nursing type and supportive type care to her husband.’

The respondents to this appeal filed general demurrers to Mary Anne's cause of action.¹ All demurrers were sustained without leave to amend. Eventually a judgment of dismissal was entered against Mary Anne. (Code Civ.Proc. § 581, subd. 3.) We understand that Richard's case is scheduled for trial in the near future.

Discussion

Although appellant's counsel, both below and here, attempts to present this case as one involving the question of ‘equal rights for wives,’ we do not see it that way. As far as we are concerned we consider it a foregone conclusion (Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225) that if the law grants a remedy to the husband when the wife is hurt, a similar remedy must be granted to the wife, when the husband is the injured party. Since this case does not involve an interspousal tort (Civ.Code, § 5109) and since the parties are not separated (Civ.Code, § 5126), any recovery by either Richard or Mary Anne will be their community property. (Civ.Code, § 5110.)²

With these thoughts in mind, we examine the three elements of damages pleaded.

We emphasize at the outset that there is a vast difference between the first of these elements—Mary Anne's loss of consortium—and the other two: regardless of whether damages to compensate for the loss of consortium will become community property, the loss is very much Mary Anne's own and is in no way included in the damages Richard seeks to recover for injury to himself. On the other hand Mary Anne's alleged loss of Richard's services and her loss of earning capacity are items which Richard will be able to recover as part of the cause of action which remains untouched by the judgment appealed from.

Loss of Consortium

Counsel invites us to overrule Deshotel v. Atchison T. & S. F. Ry. Co., 50 Cal.2d 664, 667–669, 328 P.2d 449 and West v. City of San Diego, 54 Cal.2d 469, 475–478, 6 Cal.Rptr. 289, 353 P.2d 929, holding, respectively, that neither the wife (Deshotel) nor the husband (West) can recover for the bundle of non-economic detrimental consequences resulting from injury to the other, known as ‘loss of consortium.’ In spite of counsel's eloquent exhortations to the contrary, we must hold that it is up to the Supreme Court to qualify or overrule its decisions. We say this in full recognition of Mary Anne's argument that several Supreme Court cases since Deshotal and West can be read as undermining the rational of those holdings.

Loss of Husband's Services

Clearly, if the husband is as seriously injured as counsel informs us, there are many services of an economic nature which he rendered to the community which he can no longer render. The loss of these services is, of course, compensable, although he received no money for rendering them. As long ago as 1900, in Martin v. Southern Pacific Co., 130 Cal. 285, 62 P. 515, the Supreme Court held that ‘[i]f the domestic services voluntarily rendered by the wife obviate the necessity of employing other assistance, the amount of the community property is thereby enhanced in the amount that would be required for such assistance; and by the deprivation of such services the community property suffers a corresponding damage.’ (Ibid., pp. 286–287, 62 P. p. 515.)

We have no doubt that what is true for cooking and scrubbing floors is equally true with respect to lawn mowing, general maintenance work around the house, and helping with the dishes. There is however, no discernible reason why the community should be able to claim these damages twice.³ No such double recovery is permitted. (Robbins v. Roques, 128 Cal.App. 1, 6–7, 16 P.2d 695.)

Wife's Loss of Earnings

Here the claim is that Mary Anne was ‘unable to work and earn money’ because Richard's injuries made it necessary for her to devote herself to being, in effect, his nurse.

Again we point out that no question of equal protection is presented. We continue to assume that any damages Richard could recover if Mary Anne were injured, are recoverable by her in this action based on injuries to Richard. Thus if there were any precedent permitting Richard to recover damages over and above those which Mary Anne could recover as the injured plaintiff, she would be entitled to the benefit of such a holding in this case. There is, however, no such precedent.

No facts are pleaded which would indicate that the recovery to the community is going to be one cent more if the damages incurred because of Richard's need for nursing services are considered as having been suffered because Mary Anne had to quit her job, rather than if they are viewed in the more conventional fashion as having come about because the injuries to Richard made the rendition of such services reasonably necessary. If Mary Anne quit a $1,000 a month job to render $1,000 of nursing services, the provable damages are still $1,000. If the nursing services could have been procured for $750, the defendants should not be liable for her voluntary loss. If—what seems far more likely—the reasonable value of the nursing services exceeds Mary Anne's earning capacity, the loss of the latter will be subsumed in Richard's recovery. (Bradford v. Edmands, 215 Cal.App.2d 159, 167–168, 30 Cal.Rptr. 185; Ciriniconi v. Green, 175 Cal.App.2d 812, 816, 346 P.2d 867; Seedborg v. Lakewood Gardens, etc., Assn., 105 Cal.App.2d 449, 454, 233 P.2d 943; cf. Fifield Manor v. Finston, 54 Cal.2d 632, 637, 7 Cal.Rptr. 377, 354 P.2d 1073.)

At the risk of repetition we reemphasize: 1. As presented and argued (see fn. 2, supra) this case does not raise the question whether section 370 of the Code of Civil Procedure does not go far enough and that equal protection demands that the wife, rather than the husband, be considered the proper party plaintiff with respect to certain items of damage resulting from injuries to the husband; and 2. It is similarly a false issue whether the total award to the community is greater where—all other things being equal—the wife rather than the husband is injured.

What this case is about is that, excepting the consortium factor, it is an attempt to increase the total community damages recoverable by having the jury look at a rerun of certain items of damage from a different point of view—Mary Anne's. In reality what counsel is trying to do is this: by selling the jury the same item of special damages twice, he is attempting to get the law to compensate Mary Anne for her ‘general’ damages: the personal grief, fears, mental and emotional distress which any spouse suffers when his or her mate is injured. No such recovery is recognized by the law.

The judgment is affirmed.

FOOTNOTES

1.  The record before us does not include the general demurrer filed by the respondent McDonnell Douglas Corporation. The reporter's transcript of the proceedings below, as well as the parties' briefs, agree that such a demurrer was filed. There is no question that it was sustained without leave to amend.

2.  There is a subsidiary question whether the wife is a proper party plaintiff for any damages arising out of personal injuries to either spouse. The basic rule is that except to the extent that section 370 of the Code of Civil Procedure permits the wife to sue for injuries to her own person, the proper party plaintiff is the husband, since he has the management and control of the community property. (Civ.Code, § 5105; Zaragosa v. Craven, 33 Cal.2d 315, 320–321, 202 P.2d 73; Fryer v. Kaiser Foundation Health Plan, 221 Cal.App.2d 674, 679–680, 34 Cal.Rptr. 688.) Naturally that rule is, itself, constitutionally suspect. The problem may, however, go away after January 1, 1975. (Stats.1973, ch. 987.)The problem whether Richard rather than Mary Anne should have been the nominal plaintiff for the damages asserted in her name is not before us. It has not been argued. (Hershey v. Reclamation District No. 108, 200 Cal. 550, 564, 254 P. 542; Savoy Club v. Board of Supervisors, 12 Cal.App.3d 1034, 1042, 91 Cal.Rptr. 198.)

3.  Obviously the allegations made on behalf of Richard are ample to cover any loss to the community brought about by Richard's inability to perform domestic chores of an economically valuable nature.

KAUS, Presiding Justice.

STEPHENS, and ASHBY, JJ., concur.