Appeal by plaintiff from Battle, Judge. Judgment entered 6 September 1978 in Superior Court, Orange County.
Hill, Judge. Judges Vaughn and Erwin concur in the result.
Appellant's single assignment of error challenges the dismissal of her complaint. Upon examination of the record, it is apparent that no exception to the order is set out. That is not necessary, however. G.S. 1A-1, Rule 46(b), indicates that, ". . . it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court his objection to the action of the court . . . ." Rule 10(a) and (b) of the Rules of Appellate Procedure then makes it clear that the exception, because it was properly preserved for review by action of counsel at trial and properly raised in the brief, may be set out in the record on appeal and made the basis of an assignment of error.
Appellant alleges that she has been deprived of her conjugal rights through the negligent treatment of her husband by the defendants and that her allegation states a claim for relief. Appellant seeks to distinguish an action seeking damages for loss of conjugal rights from an action seeking damages for loss of consortium, acknowledging the authority in this state which bars her
recovery for the loss of consortium or mental anguish. McDaniel v. Trent Mills, 197 N.C. 342, 148 S.E. 440 (1929); Hinnant v. Power Co., 189 N.C. 120, 126 S.E. 307 (1925). Appellant also attempts to distinguish her own loss of conjugal rights from that loss described by the plaintiff in Hinnant, supra.
It is here that appellant makes her strongest argument. In Hinnant, the plaintiff sought to recover for the loss of consortium and mental anguish suffered by her during the period between the fatal injury suffered by her husband and his death less than one day later. The court did not allow a recovery. Appellant seeks to distinguish Hinnant from her situation in two ways.
First, appellant says that a recovery would have frustrated the intent of the wrongful death statute then in force. A recovery would have allowed the wife to bring an action, thus raising the danger of a double recovery for a wrongful death. Appellant argues that here she is suffering a continuing injury which will not be compensated by a wrongful death action.
Second, appellant argues that the wrongful death statute in force at the time Hinnant was decided did not provide for recovery for loss of consortium. The present statute does. Thus, appellant is presented with the situation where she would have an action if her husband were dead, but not if he is permanently injured. Appellant has pointed out an anomaly in the law. However, it is the duty of this court to say what the law is and not what it should be.
Further, plaintiff argues that to fail to recognize a spouse's right to recover for loss of consortium of a spouse negligently injured by a third party is a denial of equal protection of the laws. We reject the contentions of the plaintiff.
Plaintiff has cited McDaniel, Supra, for the proposition that a wife, who is living with her husband, can maintain an action in her own right for damages alleged to have been sustained by her on account of the serious and permanent injuries negligently inflicted upon her husband by a third party. McDaniel approved a recovery by the wife of the expenditure of funds spent by her from her own estate to assist her husband after his injury. These funds, it was alleged, could not be recovered by the husband or his personal representatives. However, plaintiff's complaint contains
no allegation which would bring her claim within the holding of McDaniel. Her claim is for a loss of conjugal rights, a claim that is specifically set forth by McDaniel as an exception to the general rule that case states. While it is true that McDaniel specifically excepts recovery for loss of consortium, and appellant here is seeking recovery for a loss of conjugal rights, this Court is not convinced that appellant has made a distinctive claim. Both Black's Law Dictionary 382 (4th ed. 1951), ...