the loss of consortium." This statement covers the case; for it is plain that the other averments in her declaration do not show an invasion of a legal right, nor anything more than a remote and consequential damage which did not result from any wrong done directly to her.

The right of consortium is a right growing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together. At the common law, the husband had a right to the labor and services of his wife, and in suing for the damages which are personal to the husband for an injury to his wife, he was permitted to recover, not only for the expenses of her care and cure, but for his loss of her labor and services and the loss of consortium. Kelley v. N. Y., N. H., & H. R. R., 168 Mass. 308, 46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397, and cases there cited. It is said in that case, and in Nolan v. Pearson, 191 Mass. 283-286, 77 N. E. 890, 4 L. R. A. (N. s.) 643, 114 Am. St. Rep. 605, that a wife could not maintain an action at common law for the loss of consortium of her husband. The reason of this was that she could not sue in her own name for a personal injury, and that a recovery for such a wrong could only be had in a suit brought jointly by her and her husband. The right to the consortium of the other spouse seems to belong to husband and wife alike, and to rest upon the same reasons in favor of each. Since the removal of the wife's disability to sue this is now settled in most courts by a great weight of authority. Nolan v. Pearson, 191 Mass. 283, 77 N. E. 890, 4 L. R. A. n. s. 643, 114 Am. St. Rep. 605, and cases cited. It is now generally held, in accordance with the decision in Nolan v. Pearson, that, for a direct and intentional invasion of a wife's right of consortium by another woman, through the alienation of the husband's affections and criminal conversation with him, an action may be maintained, as a similar action may be maintained by a husband for a similar wrong inflicted through adultery with his wife. Formerly a wife could not maintain such an action, because her suit could only be brought by her husband, with whom she must join. The husband's own misconduct would ordinarily be a sufficient reason to prevent his bringing such a suit, if, indeed, it would not bar him, in most cases, from maintaining an action against a joint wrongdoer. Tue change of the statutes in this Commonwealth and similar changes in most other jurisdictions have given wives the same right as husbands to sue an offender for a wrong of this kind.

The wrong which may be redressed through such suits is one which has a direct tendency to deprive the husband or wife of the consortium of the other spouse. No case has been brought to our attention, and after an extended examination we have found none, in which an action for a loss of consortium alone has been maintained merely because of an injury to the person of the other spouse, for which the other has recovered, or is entitled to recover, full compensation in his own name, when the only effect upon the plaintiff's right of consortium is that, through

the physical or mental disability of the other, the companionship is less satisfactory and valuable than before the injury. The suits by husbands at common law for expenses and loss of services, in which the loss of consortium has been considered in estimating damages, were all in cases in which no damages could be awarded for loss of the ability to earn money and render services and be helpful to others, in a suit by the husband and wife for the wife's personal damages, because at common law all these elements of damage belonged to the husband. See cases cited in Kelley v. N. Y., N. H., & H. R. R., ubi supra. There was not an allowance to the wife for her loss of ability to earn wages and render service, and at the same time an allowance to the husband, in the form of compensation for the loss of consortium for the same diminution of ability to be helpful.

While there is no intentional wrong, the ordinary rule of damages goes no further in this respect than to allow pecuniary compensation for the impairment or injury directly done. When the injury is to the person of another, the impairment of ability to work and be helpful and render services of any kind is paid for in full to the person injured. Ordinarily the relation between him and others, whereby they will be detrimentally affected by the impairment of his physical or mental ability, makes the damage to them only remote and consequential, and not a ground of recovery against the wrongdoer. It may be conceivable that one may have a contractual right to the labor or services of another, continuing after the time of his injury, such that, if his ability is impaired, the contractor will be directly damaged. If there may be such a case it is unnecessary to consider whether the contractor with such a right should have his action for damages, and receive his proper share of the amount allowable for the impairment of the other's earning powers, and the damages of the other should be diminished accordingly. It is enough for the present case that persons whose relations to the injured party are purely domestic should not be permitted to share the compensation to which he is entitled for the impairment of his powers by the tort of another person, nor to receive an additional sum beyond the full compensation to which the injured person is entitled. Their damages are too remote to be made the subject of an action.

The minor children of an injured father who is legally bound to furnish them with support may suffer indirectly from his injury. So too may his wife, to whom he owes the same legal duty to furnish support; yet it was never held that a wife or minor child could recover for the consequences of a father's disability, against one who had negligently injured him. The diminished value of the husband's consortium with his wife, in such a case, is like the diminished value of the work that the husband can do for the support of his wife and the education and support of his minor children. The negligent defendant is supposed to have made full pecuniary compensation to the husband and father for his injury. In the benefit from this payment the wife and children may

be expected to share to some extent. If they still suffer loss, it is not direct, but only consequential.

The case most relied on by the plaintiff, and the only one that comes near to supporting her contention, is Kelley v. N. Y., N. H., & H. R. R., ubi supra.

The doctrines stated in the case just cited are not to be applied to cases like the present, and to this extent the decision is overruled.

Exceptions overruled.1

Topic 5. Other Family Relations

89. REVISED STATUTES OF THE STATE OF ILLINOIS, 1874. COMPILED AND EDITED BY HARVEY B. HURD, COMMISSIONER OF REVISION. Dramshops. (Ch. 43.) § 9. Every person who shall, by the sale of intoxicating liquors, with or without a license, cause the intoxication of any other person, shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and $2 per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication, which sums may be recovered in an action of debt before any Court having competent jurisdiction. . . .

§ 10. Every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any intoxicating liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages; and a married woman shall have the same right to bring suits and to control the same and the amount recovered, as a feme sole; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parent, guardian or next friend, as the Court shall direct; and the unlawful sale or giving away, of intoxicating liquors, shall work a forfeiture of all rights of the lessee or tenant, under any lease or contract of rent upon the premises where such unlawful sale or giving away shall take place; and all suits for damages under this act may be by any appropriate action in any of the courts of this State having competent jurisdiction.

1 [For Problems, Notes, and other references concerning this Right, see the footnote to No. 85, ante.]

90. NAGLE v. KELLER

SUPREME COURT OF ILLINOIS. 1908

237 Ill. 431, 86 N. E. 694

APPEAL from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County. R. W. Clifford, Judge.

Action by Catherine Nagle against John Keller and others. Judg ment for plaintiff was affirmed by the Appellate Court, and defendant Keller appeals. Affirmed.

Goldzier, Rodgers & Froelich, for appellant.

C. H. Pendleton and W. W. Mattison, for appellee.

DUNN, J. The appellee, Catherine Nagle, brought suit, under section 9 of the Dramshop Act (Hurd's Rev. St. 1908, c. 43), against John Keller, the appellant, Peter McCarthy, and Victor Briard, for damages to her means of support caused by the sale of intoxicating liquors to her brother, John W. Nagle. The cause was discontinued as to Victor Briard during the trial, and judgment for $3,000 was rendered against the remaining defendants. John Keller appealed. The Appellate Court affirmed the judgment, and he has now appealed to this Court.

It is argued that the appellee is not a person entitled to bring suit under the Act. ..

So far as the question whether or not the appellee received support from her brother is concerned, it is concluded by the judgment of the Appellate Court. It is contended, however, that the appellee had no legal right to the support she received, and therefore no claim for damages on account of being deprived of it. The declaration averred, and as the record is presented in this Court it is to be taken as true, that the appellee had been for thirty years infirm and of delicate health, and unable to earn a livelihood, and had been supported by and dependent for her support on her brother, John W. Nagle, for twenty-five years before the acts complained of; that prior to said acts said John W. Nagle was engaged in business from which he derived a substantial income, and was possessed of property, by means whereof he was able to provide a comfortable maintenance for the appellee, but that the appellant, by selling and giving him intoxicating liquors, caused him to become habitually intoxicated, and in consequence thereof he neglected his business, squandered his money, became reduced and ruined in mind, body, and estate, and failed to provide employment for himself or support for the appellee, and in further consequence of such habitual intoxication he died.

The statute gives a cause of action to any person who shall be injured in person, property, or means of support, either by an intoxicated person or in consequence of the intoxication of any person, against the person causing such intoxication. There seems to be no room for construction. It is not necessary that the person injured should sustain any business

or personal relation to the intoxicated person. Any person sustaining an injury of the kind mentioned, whether directly by the act of an intoxicated person or indirectly in consequence of his intoxication, may maintain the action. King v. Haley, 86 Ill. 106, 29 Am. Rep. 14. The appellee was, in fact, supported by her brother. She was dependent upon him, and he was legally liable for her support. She was wholly without means and unable to earn a livelihood. Under the circumstances disclosed by the record, the statute (Hurd's Rev. St. 1908, c. 107) imposed upon her brother the duty of supporting her. People v. Hill, 163 Ill. 186, 46 N. E. 796, 36 L. R. A. 634; Danley v. Hibbard, 222 Ill. 88, 78 N. E. 39. Whether it was a legal right which appellee could have enforced against her brother or not, it was a legal liability which the law imposed upon him and provided means for enforcing, of which she was receiving the benefit, and which she was deprived of in consequence of his intoxication. The statute gives her a cause of action for such deprivation. The judgment will be affirmed.

Judgment affirmed.

Topic 6. Death, as affecting Causes of Action for Corporal Harm or for Societary Harm

SUB-TOPIC A. THE COMMON LAW AND THE REMEDIAL STATUTES

91. BAKER v. BOLTON

[Printed as No. 63, ante.]

92. HAMBLY v. TROTT

[Printed as No. 64, ante.]

93. JOSEPH CHITTY. Treatise on Pleading. (1808. 11th Amer. ed., 1851, from 7th Eng. ed. Vol. I, pp. 68, 89.) We have seen that the right of action for the breach of a contract upon the death of either party in general survives to and against the executor or administrator of each. But in the case of torts, when the action must be in form ex delicto, for the recovery of damages, and the plea not guilty, the rule at common law was otherwise; it being a maxim that actio personalis moritur cum persona. . . . We will now consider the rule as it affects actions for injuries to the person, and personal and real property.

In the case of injuries to the person, whether by assault, battery, false imprisonment, slander, or otherwise, if either the party who received or committed the injury die, no action can be supported either by or against the ex

1 Ante, 19.

2 See the observations on this rule in general, 3 Bla. Com. 302; 1 Saund. 216, 217, n. 1; Cowp. 371 to 377; 3 Woodes. Lect. 73; Vin. Ab. Executors, 123; Com. Dig. Administrator, B. 13. See per Morton, J., in Wilbur v. Gilmore, 21 Pick. 525.

3 Miller v. Umbehower, 10 Serg. & Rawle, 31.