CURRIE, C. J.
The sole issue presented by this appeal is whether a wife has a cause of action for loss of the consortium of her husband who has been injured by the negligent acts of a third person.
We will first approach the problem from the standpoint of the common law. Prior to 1950 the common law did not recognize a cause of action on the part of a married woman for loss of the consortium of her husband due to negligent acts of a third party.
"By marriage, the husband and wife are one person in law: that is, 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 . . . 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."
Blackstone also advanced the further reason that the wife, being the inferior, could not sue a wrongdoer for injury to her husband, her superior:
". . . the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury."
"This, then, is the soil in which the doctrine took root the abject subservience of wife to husband, her legal nonexistence, her degraded position as a combination vessel, chattel, and household drudge whose obedience might be enforced by personal chastisement."
Obviously the historical milieu in which the doctrine originated has changed completely. Nevertheless, despite obvious changes in the social, economic and legal status of women, the common-law doctrine allowing the husband a right of action for loss of consortium, but denying the wife a reciprocal action, was uniformly adhered to by the courts until 1950.
The circuit court of appeals for the District of Columbia in 1950 made a sharp break with these past decisions in Hitaffer v. Argonne Co.
". . . we remain unconvinced that the rule which [has been] laid down should be followed in the District of Columbia. On the contrary, after piercing the thin veils of reasoning employed to sustain the rule [denying the wife recovery], we have been unable to disclose any substantial rationale on which we would be willing to predicate
It then quoted with approval the following from an 1889 New York case
"The actual injury to the wife from loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband, and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation, not only of natural right, but also of a legal right arising out of the marriage relation. . . As the wrongs of the wife are the same in principle and are caused by acts of the same nature as those of the husband, the remedy should be the same."
At the time this court was called upon to decide Nickel v. Hardware Mut. Casualty Co.
"There has been almost universal condemnation of such a result on the part of legal writers. Obviously it can have no other justification than that of history, or the fear of an undue extension of liability of the defendant, or a double recovery by wife and husband for the same damages. The loss of `services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband. Nor is any valid reason apparent for allowing her recovery for a direct interference by alienation of affections, and denying it for more indirect harm through personal injury to the husband, where no such distinction is made in his action....
"Around 1958 something of a current of support for the Hitaffer case set in, and since that date the trend has been definitely in the direction of approval. It now
A recent federal case
"However the right is characterized, it arises from the marital relation, and to say that is inheres in the husband but not the wife is to indulge in what the Hitaffer court termed `legal gymnastics.' And to grant a husband the right to sue on this right while denying the wife access to the courts in the assertion of this same right is too clearly a violation of Fourteenth Amendment equal protection guarantees to require citation of authority."
Both logic and the interest of justice require that, if a husband is to be accorded the right to recover for loss of consortium of the wife injured through the negligent act of another, a wife also should be accorded the same right where she sustains a loss of consortium of the husband. The genius of the common law is its ability to adapt itself to the changing needs of society. Because the bases on which the old common-law rule which denied to the wife the right of recovery for loss of her husband's consortium rest on historical concepts which long ago disappeared, we deem the rule of Nickel v. Hardware
The two statutes construed in Nickel were secs. 6.015 and 246.07, Stats. 1953, which provided as follows:
The gist of the court's construction of these two statutes in Nickel was this: The enumeration in sec. 246.07, Stats., of the actions which a married woman may maintain implies the exclusion of others such as one for loss of consortium. It is a special statute while sec. 6.015 is a general statute, and thus in case of conflict sec. 6.015 must yield to sec. 246.07 even though sec. 6.015 was enacted after sec. 246.07. Also, while not controlling, the fact that sec. 6.015 appears in the chapter of the statute
In retrospect the salient error in this chain of reasoning is the holding that the two statutes are in conflict with each other so as to make applicable the rule that a specific statute controls over a general statute. It is a cardinal rule of statutory construction that conflicts between different statutes, by implication or otherwise, are not favored and will not beheld to exist if they may otherwise be reasonably construed.
As noted above, the court in Nickel stated that the placing by the legislature of sec. 6.015, Stats., in the chapter of the statutes relating to elections suggested the possibility that sec. 6.015 was only intended to grant married women equal political rights as distinguished from property rights. This possible interpretation has been negated by the action of the legislature in enacting ch. 666, Laws of 1965. Sec. 1 of ch. 666 repealed all of chs. 5 to 10, and sec. 20 thereof re-created sec. 6.015 as new sec. 246.15. The minutes of the committee which
Moreover, the court's opinion in Nickel failed to set forth three prior holdings of the court in which it was determined that sec. 6.015, Stats., was intended to confer rights upon married women beyond those having to do with the extension of suffrage.
The first of these prior decisions was First Wisconsin Nat. Bank v. Jahn.
Another such prior decision was Wait v. Pierce
"It was not necessary [for sec. 6.015] to refer to freedom of contract, holding and conveying property, care and custody of children in order to carry the suffrage
A further case decided by this court which accorded sec. 6.015, Stats., a wider scope than given it in Nickel is Estate of Cortte.
"This statute provides that `women shall have the same rights and privileges under the law as men' in several specified respects including `freedom of contract,"holding and conveying property,' and most everything else conceivable, `and in all other respects.' . . .
"The statute puts husband and wife on basis of complete equality before the law in every respect. Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 210 N. W. 822."
We thus conclude that, if the matter were before us as an original proposition, we would be compelled to hold that the language of sec. 6.015, Stats., "Women shall have the same rights and privileges as men ... in all other respects" embraces the right to prosecute the same causes of action that men possess. This would include a cause of action for loss of consortium. The problem which has caused us no little concern is whether the construction placed upon the interrelationship of secs.
This court over the years has repeatedly held that a construction given to a statute by the court becomes part of the statute unless the legislature subsequently amends the statute to effect a change.
We consider that we are bound by the interpretation placed on sec. 246.07, Stats., by Nickel, i.e., the enumeration of specific causes of actions maintainable by a married woman excludes a cause of action not enumerated. Nickel does not expressly hold that the words "in all other respects" of sec. 6.015 do not apply to causes of action, but only suggests that this may be so because of the placement of that statute in the chapter dealing with elections. As we have seen, such a suggested interpretation is not only at odds with three earlier decisions of this court, but has been rejected by the legislature in directing that sec. 6.015 be placed in ch. 246 entitled, "Property Rights of Married Women."
Thus the only remaining hurdle to be surmounted is the erroneous determination in Nickel that secs. 246.07 and 6.015, Stats., are in conflict. We do not deem that this is governed by the rule that once this court construes a statute such construction becomes a part of the statute which only the legislature is free to change. Accordingly, we overruled the holding in Nickel that the two statutes are in conflict, and determine that sec. 6.015 expands the types of action maintainable by a married woman beyond
The most persuasive argument which has been advanced against permitting a married woman to sue a negligent tort-feasor for loss of consortium is that it would permit a double recovery. This argument was effectively stated in Nickel as follows: "Various reasons have been given by the courts for their rejection of claims of this nature. To us the most appealing is that to permit it would result in double recovery to the husband and wife for the same injury. In the husband's action he is entitled to recover full compensation for all injuries he sustained, including that for being incapacitated, for his inability to care for, protect, and associate with his wife. If she were authorized to recover from the same wrongdoer, the damages she has sustained for the same injuries which her husband may recover for and out of which recovery he is presumed to support and care for her, their recovery would be double, which in our opinion the legislature never intended."
This argument emphasizes but one element of consortium—the loss of support or services. The concept of consortium, however, embraces love, companionship, affection, society, sexual relations, services, solace and more.
"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. (Hitaffer v. Argonne Co., at p. 815.) Hence, since the possibility of double recovery can be eliminated by this simple adjustment of damages, it should not constitute a basis for denying her action, which includes many elements which are in no way compensable in the husband's action." (Emphasis supplied.)
The area where double recovery might occur is confined to impairment of the husband's earning capacity which would reflect itself in the wife's damages for loss of support. This double recovery can be obviated by imposing as a condition to permitting a wife the right to maintain an action for loss of consortium against a negligent tort-feasor the requirement that her cause of action be joined with that of her husband for his injuries. By so requiring the possibility of double recovery can be guarded against by the form of special verdict and the accompanying instructions to the jury in cases tried to a jury. If tried to the court instead of a jury, the court's findings of damages should be such as to avoid any duplication.
In summary, this court concludes that a wife may maintain an action for loss of consortium of her husband against a negligent tort-feasor provided, and on condition, that her cause of action is combined with that of her husband for his personal injuries. In the instant case the plaintiff wife's cause of action is joined with that of her husband for his injuries.
HANSEN, J., took no part.