Minnesota Supreme Court, 1969 The Minnesota Supreme Court abrogated its rule denying wives recovery for loss of consortium from a spouse's negligently inflicted injuries, recognizing a derivative wife's action subject to joinder safeguards while applying collateral estoppel on liability.

The Minnesota Supreme Court abrogated its rule denying wives recovery for loss of consortium from a spouse's negligently inflicted injuries, recognizing a derivative wife's action subject to joinder safeguards while applying collateral estoppel on liability.

Thill v. Modern Erecting Co.
Minnesota Supreme Court · Decided September 19, 1969 · Peterson
284 Minn. 508; 170 N.W.2d 865; 1969 Minn. LEXIS 1078 (Minnesota Reports)

Outcome: Reversed for plaintiff.

AI-enhanced analysis. Verify before relying in legal proceedings.

Counsel

DeParcq, Anderson & Perl, William H. DeParcq, and Richa/rd G. Hunegs, for appellant., Faegre & Benson and Wright W. Brooks, for respondent Modern Erecting Company., Kain & Kressel and John G. Kressel, for respondent Johnson, Drake & Piper, Inc., Robb, Robb & Van Eps and Douglas Dale Reid, Jr., for respondent J. L. Shiely Company., Hoppe & Healy and Robert J. Healy, for respondent Jesco, Inc.

Can I rely on this case?

Citation treatment has not been reviewed for this case. The notes below come from the citation graph and the Minnesota Revisor's amendment records, not from a review of how later courts treated this decision.

(as of 9/30/2026)

Last cited by a Minnesota appellate court in 2014, among the opinions in this site’s citation index.

Not a substitute for Shepard’s or KeyCite — verify before relying.

See our Terms of Use before relying on these notes. Report an error

Thill v. Modern Erecting Co.

What happened

The facts of the case, in plain language.

Edward L. Thill was rendered a permanent paraplegic when a truck crane moving a bucket-load of ready-mixed concrete tipped over on him at a construction site.

A jury in the husband's prior 1960 action found Johnson, Drake & Piper, Inc. and Modern Erecting Company causally negligent and Jesco, Inc. and J. L. Shiely Company not negligent, and the $642,000 special verdict was conditionally reduced to $375,000, which he accepted.

Minnesota law under Eschenbach v. Benjamin (1935) denied a wife any cause of action for negligent injury to her right of consortium, on the rationale that the husband's own recovery compensated the loss and a second action risked double damages.

The court applied its new rule to this case despite the impossibility of joining the wife's action with her husband's, permitting a separate trial with evidentiary safeguards against double recovery.

Both parties were held collaterally estopped on liability: Johnson and Modern are bound by their adjudicated liability to the husband, and the wife is bound by the adjudicated nonliability of Jesco and Shiely.

What the court decided

Therese Thill sued four construction companies for loss of consortium after a truck crane accident left her husband, Edward Thill, a permanent paraplegic; his earlier lawsuit had yielded a reduced $375,000 verdict against two of them. Minnesota law then barred a wife's claim for negligent injury to her husband, so the trial court dismissed her suit. The supreme court overruled that 1935 precedent, holding that a wife may recover for loss of consortium—her interest in companionship, comfort, and sexual relations within marriage—when her husband is negligently injured, provided her claim is joined with his to prevent double recovery. The new rule was made prospective, but applied to this case without joinder because joinder was impossible. The court used collateral estoppel (issue preclusion): Johnson and Modern were bound by the finding of negligence, while Thill was bound by the finding that Jesco and Shiely were not negligent.

  1. The wife of a husband injured as the direct result of the negligence of another has a right of action against that same person for her loss of consortium, subject to three essential conditions: (a) the right is derivative, so she may recover only if her husband recovers from the same defendant; (b) her cause of action exists only if joined for trial with the husband's own action against the same defendant; and (c) any award for her loss of consortium shall be joined in judgment with her husband's, except where she specifically declares to the jury her insistence on judgment in her own name alone. (*513)
  2. Eschenbach v. Benjamin is overruled to the extent that it denies a wife a cause of action for negligent injury to her right of consortium. (*514)
  3. The newly recognized cause of action applies prospectively to personal injuries sustained from and after the date of decision, except that it applies to the case then before the court; where joinder of the wife's action with the husband's is impossible, the wife may proceed to trial on her separate cause of action without joinder, provided the trial court affords defendants the substitute safeguard of evidentiary findings and jury instructions designed to prevent double recovery. (*514)
  4. Where a wife's consortium claim is derivative of her husband's claim and the claims ordinarily must be jointly tried, practical privity justifies asserting collateral estoppel against both the wife and the defendants on issues of liability finally adjudged on the merits in the husband's prior action; accordingly, defendants adjudged liable to the husband are bound by that liability, and the wife is bound by the adjudicated nonliability of the remaining defendants. (*516)

How the court reached its decision

The court's reasoning, step by step.

Whether Minnesota should adhere to the rule that a wife has no action for her own loss of consortium as a result of negligent injury to her husband. Since Eschenbach, a marked division of authority developed beginning with Hitaffer v. Argonne Co., with numerous jurisdictions recognizing the wife's action out of respect for the equal status of marriage partners and rejection of the medieval concept of the husband's proprietary right to the wife's services; the competing rules reflect determinations of public policy rather than logic or constitutional mandate. The court established the wife's right of action for loss of consortium subject to the three stated conditions and overruled Eschenbach to the extent of its inconsistency.

Whether the newly recognized cause of action may be applied to the instant case despite the impossibility of joining the wife's action with the husband's prior action. Because joinder was impossible in this case, the court required a substitute safeguard: the trial court must determine and disclose to the jury the claims Edward Thill made and the amount he recovered, and instruct the jury to award the wife only such damage as the evidence sustains over and above that necessarily considered in the husband's prior action. Plaintiff may proceed to trial upon her separate cause of action without necessity of joinder, subject to the substitute evidentiary safeguards.

Whether plaintiff and defendants are collaterally estopped from litigating the issue of liability previously adjudicated in the husband's action. Defendants' negligence and the absence of contributory negligence were finally adjudged on the merits; because the wife's right is derivative and the claims ordinarily must be jointly tried, there is such practical privity—reinforced by her participation on her husband's behalf and the benefit she received from his recovery—as to justify estoppel, and retrial of liability after a long trial would needlessly expense litigants and the state. Johnson and Modern are bound by the final judgment of their liability to the husband, warranting summary judgment as to liability only against them; plaintiff is bound by the final judgment of nonliability as to Shiely and Jesco, warranting summary judgment in their favor.

Key quotes from the opinion

Notable passages from the opinion, in the court's own words.

““Consortium,” as a general description, represents reciprocal rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other.”
Definition of consortium as reciprocal marital rights — *510
“The rule that we establish today is that the wife of a husband injured as the direct result of the negligence of another shall have a right of action against that same person for her loss of consortium, subject to these essential conditions:”
New rule establishing the wife's derivative action for loss of consortium — *513
“Eschenbach v. Benjamin, supra, is overruled to the extent only that it is inconsistent with this opinion.”
Overruling of the precedent denying the wife's consortium claim — *514
“We hold, therefore, that defendant Johnson and defendant Modern are each bound by the final judgment of their liability to plaintiff’s husband and direct that summary judgment as to liability only shall be entered against each of them and in favor of plaintiff.”
Collateral estoppel binding Johnson and Modern on liability — *516

Cases the court relied on

Earlier decisions the court cited as authority for its ruling.

  • Eschenbach v. Benjamin (195 Minn. 378, 263 N.W. 154) — The 1935 decision denying a wife any cause of action for negligent injury to her right of consortium, which this opinion expressly overrules to the extent of its inconsistency with the newly recognized action.
  • Hitaffer v. Argonne Co. (87 App. D.C. 57, 183 F.2d 811) — The 1950 decision that began the modern trend recognizing a wife's action for loss of consortium, cited to show that Eschenbach's once-uniform rule had given way to a marked division of authority.
  • Lustik v. Rankila (269 Minn. 515, 131 N.W.2d 741) — Minnesota decision endorsing the Bernhard test, anchoring the court's collateral-estoppel analysis in established state law.

Cases that cite this one

73 later published cases cite this decision. The 25 that cite it most often are listed here.

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Full opinion

The complete text of the court's opinion as published.

Opinion of the Court

Peterson, Justice.

Plaintiff, Therese M. Thill, whose husband, Edward L. Thill, sustained personal injuries in an industrial accident, appeals from a summary judgment dismissing her claim for loss of consortium against these corporate defendants: Johnson, Drake & Piper, Inc. (Johnson); Modern Erecting Company (Modern); Jesco, Inc. (Jesco); and J. L. Shiely Company (Shiely).

Edward Thill was injured when a truck crane moving a bucket-load of ready-mixed concrete at a construction site tipped over on him, rendering him a permanent paraplegic. In his own action, commenced against the four defendants in 1960, a jury by special verdict found Johnson and Modern causally negligent « but found Jesco and Shiely not negligent. The special verdict returned against Johnson and Modern was $642,000. The trial court conditionally reduced that award to $375,000, which Edward accepted. A cross-claim of Johnson against Modern and Jesco for indemnity was at the same time denied. Upon the appeal of Johnson and Modern from an order denying their alternative motions for judgment notwithstanding the verdict or for a new trial, we affirmed. Thill v. Modern Erecting Co. 272 Minn. 217, 136 N. W. (2d) 677. Therese, plaintiff in the instant case, *510thereafter independently instituted her separate action against the same defendants for her permanent loss of consortium. Plaintiff alleges that by reason of her husband’s injuries she has suffered “a permanent loss of consortium and has been totally deprived of his companionship, comfort, aid, assistance, sexual relations and conjugal society, and has been caused to suffer and sustain great mental pain and anguish which will continue in the future.” No action has been instituted on behalf of the Thill children.1

1. The basic issue in this case is whether we should adhere to the rule, otherwise rightly applied by the trial court, that a wife has no action for her own loss of consortium as a result of negligent injury to her husband. Eschenbach v. Benjamin, 195 Minn. 378, 263 N. W. 154. See, also, Hartman v. Cold Spring Granite Co. 247 Minn. 515, 77 N. W. (2d) 651, and State Farm Mutual Auto. Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N. W. (2d) 36, which, in different contexts, reiterate the rule.

“Consortium,” as a general description, represents reciprocal rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other.2 Its “predominant *511element,” however, as more specifically described by plaintiff’s counsel, is “the loss of sexual relationship,” presumably including frustration of man’s primal drive of reproduction. The predominance of this element tends both to exclude claims asserted by children for injury to a parent and to avoid excessive appeal to sentimentality. The marital relationship is a wholeness, so, except only as we have emphasized a specific facet of it, attempts otherwise to single out its elements for the assessment of damages would be inappropriate.

We have, since the Eschenbach case was decided in 1935, held that “neither wife nor children have a cause of action for an injury inflicted upon the husband and father, that right being strictly limited to the injured party.” 195 Minn. 379, 263 N. W. 155. Even though the wife has a right of action against a third person who intentionally invades her right of consortium, as in the case of alienation of affections, we have until today denied her a cause of action for negligent injury to such right. The rationale has been that, unlike the alienation of affections, the injury resulting from the negligent act of a third person is remedied by the husband’s own action for the recovery of loss to his earning capacity and that an additional action by the wife would probably result in double damages. It would, we concluded in Eschenbach, result in “litigation almost without end, all based upon a single tort and only one individual physically involved in the accident itself.” 195 Minn. 380, 263 N. W. 155.

The Eschenbach rule accorded with the virtually unanimous rule in other jurisdictions at the time, but since then there has developed a marked division of authority. Starting in 1950 with Hitaffer v. Argonne Co. 87 App. D. C. 57, 183 F. (2d) 811, 23 A. L. R. (2d) 1366, certiorari denied, 340 U. S. 852, 71 S. Ct. 80, 95 L. ed. 624, the wife’s right to maintain an action for loss of consortium is now recognized in numerous jurisdictions.3 This *512results from recognition of the equal status of the partners in the marriage relationship and a rejection of the medieval concept that the husband had a proprietary right to his wife’s services, mainly domestic service, but that the wife, as the property of her husband, had no reciprocal right to his. As Dean Prosser summed it up in his treatise, Law of Torts (3 ed.) § 119, p. 917: “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.” A few states, agreeing with the Hitaffer premise, have neatly resolved the issue by simply abrogating the husband’s, own action for consortium.* **4 Others have adhered to their pre-Hitaffer rule, viewing the husband’s right of consortium as a historic anomaly too deeply imbedded in tort law to alter but too hazardous of duplicate recovery for extension.5 These various rules, supported as they are by impres*513sive authority, are not so much based upon logic or constitutional mandate* ****6 as they are upon a determination of the judicial sense of public policy.

The rule that we establish today is that the wife of a husband injured as the direct result of the negligence of another shall have a right of action against that same person for her loss of consortium, subject to these essential conditions: (a) Because we hold her right of action to be a derivative right, she may recover only if her husband recovers from the same defendant;7 (b) because we deem it an indispensable safeguard against the danger of double recovery, she will have her cause of action only if it is joined for trial with the husband’s own action against the same defendant; and (c) because the wife’s action for lost consortium is so much based upon impairment of marital relationship, were it to continue in the future, any award for her loss of consortium shall be joined in judgment with that of her husband, except only if she shall specifically declare to the jury her insistence for judgment in her own name alone.8

*514The concept of joinder of the two actions, as a safeguard against double damages, is not original but was at least inferentially suggested by counsel for plaintiff, with the support of these recent cases: Fitzgerald v. Meissner & Hicks, Inc. 38 Wis. (2d) 571, 157 N. W. (2d) 595; Millington v. Southeastern Elev. Co. 22 N. Y. (2d) 498, 293 N. Y. S. (2d) 305, 239 N. E. (2d) 897; Deems v. Western Md. Ry. Co. 247 Md. 95, 231 A. (2d) 514; Ekalo v. Constructive Serv. Corp. of America, 46 N. J. 82, 215 A. (2d) 1.

Eschenbach v. Benjamin, supra, is overruled to the extent only that it is inconsistent with this opinion.9

2. Today’s decision is prospective and is applicable only with regard to personal injuries sustained from and after this date, except that it shall additionally apply to the instant case.10 Application of the decision to the instant case is not without difficulty, of course, because it is impossible to join the wife’s action with that of her husband’s. We hold, therefore, that plaintiff may proceed to trial upon her separate cause of action without necessity of joinder, but that it is incumbent upon the trial court to afford defendants the substitute safeguard of evidentiary ral*515ings and instructions to the jury. The trial court must determine and disclose to the jury what claims were made by Edward L. Thill in the trial of his action against the same defendants and the amount recovered by him in his action, as reduced by its post-trial order. The jury should, in that connection, be instructed that they should make an award to her only for such damage as the evidence now adduced will sustain over and above that necessarily considered by the jury in her husband’s prior action for his own loss.

3. We hold, for the purposes of the instant case and in the interest of justice, that both plaintiff and defendants are collaterally estopped against litigating any issue of liability,11 within the broad test of Bernhard v. Bank of America Nat. Trust & Sav. Assn. 19 Cal. (2d) 807, 122 P. (2d) 892, as endorsed by Lustik v. Rankila, 269 Minn. 515, 131 N. W. (2d) 741. The basic issue of defendants’ negligence and the absence of contributory negligence was finally adjudged on the merits. Where the right of plaintiff Therese M. Thill is derivative from the right of plaintiff Edward L. Thill, and where, under the rule announced in this case, the claims ordinarily must be jointly tried, we think there is such practical privity as to justify asserting the principle of collateral estoppel against this plaintiff as part of the ad hoc disposition in this case. The nature of the original case, from which in a real sense the wife benefited in her husband’s recovery, as well as her own participation on her husband’s behalf, *516indicates the fullness of opportunity and incentive for all the parties to have fully litigated that issue. We perceive no injustice in so holding, and it is inconceivable that the result would have been different had this plaintiff been technically a joint plaintiff in that case. Having in mind the long trial that occurred in that case, a fruitless trial of the issue of liability would be needlessly expensive for both the litigants and the state.

We hold, therefore, that defendant Johnson and defendant Modern are each bound by the final judgment of their liability to plaintiff’s husband and direct that summary judgment as to liability only shall be entered against each of them and in favor of plaintiff. We hold, for the reasons stated, that this plaintiff is bound by the final judgment of nonliability as to defendant Shiely and as to defendant Jesco and direct that summary judgment be entered in favor of these two defendants and against plaintiff.

Reversed and remanded.

Edward is 40 years of age and Therese is 31. They have five children, all under the age of seven years at the time of the accident in 1960.

Mr. Justice Keating has described “consortium” in Millington v. Southeastern Elev. Co. 22 N. Y. (2d) 498, 503, 293 N. Y. S. (2d) 305, 308, 239 N. E. (2d) 897, 899, in these words: “* * * It is the interest which may have turned a happily married woman into a life-long nurse and deprived her of the opportunity of rearing children. Disparagingly described as ‘sentimental’ or ‘parasitic’ damages, the mental and emotional anguish caused by seeing a healthy, loving companionable mate turned into a shell of a person is real enough. * * * The loss of companionship, emotional support, love, felicity and sexual relations are real injuries. * * * There may not be a deterioration in the marital relationship, but it will certainly alter it in a tragic way.” Such descriptions are too expansive. It may at least be doubted that “love” itself, as expressed in the traditional marriage vows, is altered by sickness or injury.

Missouri P. Transp. Co. v. Miller, 227 Ark. 351, 299 S. W. (2d) 41; Yonner v. Adams, 53 Del. 229, 167 A. (2d) 717; Brown v. Georgia-Tennessee Coaches, Inc. 88 Ga. App. 519, 77 S. E. (2d) 24; Dini v. Naiditch, *51220 Ill. (2d) 406, 170 N. E. (2d) 881, 86 A. L. R. (2d) 1184; Acuff v. Schmit, 248 Iowa 272, 78 N. W. (2d) 480; Montgomery v. Stephan, 359 Mich. 33, 101 N. W. (2d) 227; Novak v. Kansas City Transit, Inc. (Mo.) 365 S. W. (2d) 539; Duffy v. Lipsman-Fulkerson & Co. (D. Mont.) 200 F. Supp. 71; Cooney v. Moomaw (D. Neb.) 109 F. Supp. 448; Ekalo v. Constructive Serv. Corp. of America, 46 N. J. 82, 215 A. (2d) 1; Millington v. Southeastern Elev. Co. supra; Ellis v. Fallert, 209 Ore. 406, 307 P. (2d) 283; Hoekstra v. Helgeland, 78 S. D. 82, 98 N. W. (2d) 669; Moran v. Quality Aluminum Casting Co. 34 Wis. (2d) 542, 150 N. W. (2d) 137. See generally, Note, 61 Col. L. Rev. 1341; Annotation, 23 A. L. R. (2d) 1378.

West v. City of San Diego, 54 Cal. (2d) 469, 6 Cal. Rptr. 289, 353 P. (2d) 929; Marri v. Stamford St. R. Co. 84 Conn. 9, 78 A. 582, 33 L. R. A. (N.S.) 1042; Bolger v. Boston Elevated R. Co. 205 Mass. 420, 91 N. E. 389; Helmstetler v. Duke Power Co. 224 N. C. 821, 32 S. E. (2d) 611; Martin v. United Elec. Rys. Co. 71 R. I. 137, 42 A. (2d) 897; Carey v. Foster (4 Cir.) 345 F. (2d) 772.

Smith v. United Const. Workers, Dist. 50, 271 Ala. 42, 122 So. (2d) 153; Jeune v. Del E. Webb Const. Co. 77 Ariz. 226, 269 P. (2d) 723; Franzen v. Zimmerman, 127 Colo. 381, 256 P. (2d) 897; Ripley v. Ewell (Fla.) 61 So. (2d) 420; Miller v. Sparks, 139 Ind. App. 148, 189 N. E. (2d) 720; Hoffman v. Dautel, 192 Kan. 406, 388 P. (2d) 615; Baird v. Cincinnati, N. O. & Tex. P. R. Co. (Ky. App.) 368 S. W. (2d) 172; Potter v. Schafter, 161 Maine 340, 211 A. (2d) 891; Simpson v. Poindexter, 241 *513Miss. 854, 133 So. (2d) 286, 134 So. (2d) 445; Snodgrass v. Cherry-Burrell Corp. 103 N. H. 56, 164 A. (2d) 579; Roseberry v. Starkovich, 73 N. Mex. 211, 387 P. (2d) 321; Nelson v. A. M. Lockett & Co. 206 Okla. 334, 243 P. (2d) 719; Neuberg v. Bobowicz, 401 Pa. 146, 162 A. (2d) 662; Page v. Winter, 240 S. C. 516, 126 S. E. (2d) 570; Krohn v. Richardson-Merrell, Inc. 219 Tenn. 37, 406 S. W. (2d) 166, certiorari denied, 386 U. S. 970, 87 S. Ct. 1160, 18 L. ed. (2d) 129; Garrett v. Reno Oil Co. (Tex. Civ. App.) 271 S. W. (2d) 764; Baldwin v. State, 125 Vt. 317, 215 A. (2d) 492; Ash v. S. S. Mullen, Inc. 43 Wash. (2d) 345, 261 P. (2d) 118; Seagraves v. Legg, 147 W. Va. 331, 127 S. E. (2d) 605.

Leffler v. Wiley, 15 Ohio App. (2d) 67, 239 N. E. (2d) 235, is an example of the right of recovery being granted to a wife on constitutional grounds.

This, of course, means that the tortfeasor was negligent and the husband was free from contributory negligence. Any refinement of this rule in terms of comparative negligence must await future adjudication.

This condition (c) shall not, however, preclude submission of the wife’s loss of consortium and the husband’s loss of consortium separate*514ly to the jury upon interrogatories or special verdict, as a means of judicial restraint upon duplication of damages. The trial court, indeed, should carefully caution the jury that any loss to the wife of her husband’s material support is fully compensated by any award to him for impairment of his lost earnings and that the burden of his disability upon her performance of her normal services to him may be compensated to one but not to both.

Our decision does not overrule our decisions in either Hartman v. Cold Spring Granite Co. 247 Minn. 515, 77 N. W. (2d) 651, or State Farm Mutual Auto. Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N. W. (2d) 36, which in a different manner involved statutes with special legislative histories and objectives. For much the same reason, our decision in Fussner v. Andert, 261 Minn. 347, 113 N. W. (2d) 355, has not controlled either the decision or its expression in the instant case.

This limitation upon prospective application is dictated by the decisions in Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N. W. (2d) 795; and Balts v. Balts, 273 Minn. 419, 142 N. W. (2d) 66.

The issue, we acknowledge, has not squarely been raised upon this appeal. The trial judge did make a hypothetical response as to the ruling he would make if this court were to reverse, and remand the case for- trial and, in so doing, the court indicated that it would apply the principles of collateral estoppel to defendants Johnson and Modern but not to defendants Shiely and Jesco. Although that hypothetical ruling is not in any sense an appealable order, the obvious risk of extended trial and subsequent appeal is such as to warrant our consideration of the issue so inescapably involved. See, Minn. St. 605.05 of the Civil Appeal Code. See, also, McCormack v. Hankscraft Co. Inc. 278 Minn. 322, 343, 154 N. W. (2d) 488, 502.

This page includes AI-generated summaries and analysis based on the full opinion text and citing cases. We believe the summaries are accurate, but you should always verify the holdings, quotes, and treatment data against the original opinion before relying on them in legal proceedings.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.