Anderson v. McGill Club , 51 Nev. 16 ( 1928 )

I concur in the order of affirmance. The demurrer admits that the game conducted by the defendant constituted not only a public nuisance but a crime. It also admits that the defendant was instrumental, through the operation of that game, in depriving the plaintiff of the consortium of her husband. The question of law for us to decide is, do the facts thus admitted constitute a cause of action in favor of the plaintiff.

The novelty of the case is not a consideration which can influence us in reaching a decision. 18 N.C. 516, 105 S.E. 206; Harris v. Trust Co., 128 Tenn. 573-579; Kujeck v. Goldman,150 N.Y. 176; Holleman v. Harward, 119 N.C. 150. The real question for determination is whether the allegations of the complaint show that defendant has by its conduct violated any legal right of the plaintiff. While the husband could recover at common law against one who was guilty of depriving him of the consortium of his wife, the wife could not recover for a like act, but now it is generally conceded that in a proper case the wife may also recover for her loss of consortium of her husband. Nolin v. Pearson, 191 Mass. 283, 4 L.R.A. (N.S.) 643; Hinnant v. Tidewater Power Co., 189 N.C. 122, 126 S.E. 307; Moberg v. Smith (S.D.),161 N.W. 998; 30 C.J. 1123.

Notwithstanding the foregoing observations, I am of the opinion that the demurrer was properly sustained. All of the authorities make the right of recovery in a suit brought by a wife for damages for loss of consortium turn upon the question of whether there was a direct and intentional invasion by the defendant of the marital relation, existing between the plaintiff and her husband. Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 34 L.R.A. 803, 56 Am. St. Rep. 672; Hinnant v. Tidewater Power Co., supra; Flandermeyer v. Cooper, 85 Ohio St. 327, 98 N.E. 102, 40 L.R.A. (N.S.) 360, Ann. Cas. 1913A, 983.

Since there is no allegation in the complaint to the effect that the defendant knew that the husband of plaintiff was a married man, nor other allegation covering the point, the demurrer was properly sustained.

COLEMAN, J., I concur in the opinion of Justice DUCKER.

ON PETITION FOR REHEARING June 5, 1928.