We hold these truths to be self-evident that all men are created equal and are endowed by their creator with certain unalienable rights, among these are life, liberty and the pursuit of happiness.

(Declaration of Independence)

D. W. Miller was 32 years of age, married, and had three children. He was steadily employed and provided well for his family. He had a bright future. He was diligent in his work, but also zealous of quality time with his family. He and Mrs. Miller were active in the P.T.A. They and the children attended Sunday School and church regularly, and they were supporters of the school's ball teams. They enjoyed picnics and fishing. Those were happy days.

Mrs. Miller's mother would sometime stay with the children in order that the Millers could have time together or be with friends. The Millers had a good life, but their plans and hopes for the future ended abruptly and tragically on November 16, 1955.

D. W. Miller was a passenger in a Missouri Pacific Transportation Company Bus. The driver of the bus was engaged in a conversation with a passenger. He was not keeping a lookout and not watching the direction he was driving. A vehicle swerving across the highway and zigzagging across the road was not seen by him. The vehicle was seen by some of the passengers on the bus. They started shouting, but it was too late. The bus and the vehicle collided head-on.

Miller was severely injured, transported to the hospital by ambulance, where he remained under intensive care for an extensive period. He was rendered a paraplegic.

He had no control of his bodily functions below the waist. He wore a catheter and his bowel movements had to be manually activated. He had to be fed, bathed, and frequently turned in his bed. He was a shadow of his original self.

All the chores now fell on Mrs. Miller. She loved her husband and unselfishly devoted her physical and emotional energies to caring for her paralyzed mate. The wrongful injury of her husband caused her to be converted into a full-time nurse, cook, housekeeper--a scullion. They had had a good life, shared mutual interests, planned and hoped for the future. All of this was destroyed. Their stream of life became stagnant.

Did Mrs. Miller have a remedy for the wrongful deprivation of her husband's services and marriage relationship? Up until this time, the Arkansas courts and the common law "notoriously enveloped the identity of the wife and all her possessions in the personality of her husband." It was a rule that, "the husband and wife are to be regarded as one person." The wife had no remedy under the law to pursue her claim for the loss of consortium - the services and companionship of her husband - against a wrongful offender.

The precepts proclaimed to the world by the American Declaration of Independence and by the Bill of Rights to the Constitution were not automatically implemented for all citizens. The rights of women to come under the protective umbrella of these inspired documents were granted slowly, reluctantly, begrudgingly by the courts. Archibald Yell, Governor of Arkansas, in the first legislative session following the state's admission to the Union in 1833, vetoed a bill passed by the Legislature granting to women the right to own property. His holding was that to give women the right to own property would undermine the relationship between husband and wife, the husband being the dominant member and head of the household.

Women were not even given the right to vote until 1920 by passage of the 19th Amendment - a century and a half after our Declaration of Independence. The poll tax, as a requirement for voting, used as a means of disenfranchising blacks, women and poor whites, was not repealed until 1964 by passage of the 24th Amendment.

Many women and children were required to work in factories and textile mills twelve hours a day, six days a week, for less than a subsistence wage. In 1936, the Supreme Court of the Untied States held:

New York minimum wage law for women and minors, forbidding wage which is less than fair and reasonable value of services and less than sufficient to meet minimum cost of living necessary for health, was in violation of the clue process clause of the Fourteenth Amendment protecting freedom of contract of the employer. [Morehead v. People of the State of New York, et al., 50 Supreme Court Reporter 918 (1936).]

It was 1943 before the Supreme Court of Missouri held:

The statute prohibiting employment of females in manufacturing establishments for longer than 9 hours per day or 54 hours per week is unconstitutional as "discriminatory", and as denying employers "due process of law" and "equal protection of the law." [State v. Taylor, 173 S.W.2d 902 (1943).]

So it was that in 1955 women in Arkansas were denied the same rights under the law accorded to their husbands. The husband had the right, under the law, to recover compensation for wrongful injuries inflicted on his wife which interfered with and damaged their marriage relationship. The wife was denied this crucial right of recovery. Before Hitaffer v. Argonne Company, Inc., 87 U.S.App. D.C. 57, 183 F.2d 811 (1950), all the courts of this country and England had held that a wife had no standing in court to pursue the cause of action for loss of consortium resulting from negligent injury to her husband. In Hitaffer, the court forthrightly overruled this ancient and unjust provision of the common law. The court, quoting a New York case, Bennett v. Bennett, 116 N.Y. 584, 590, 23 N.E. 17, 6 L.R.A. 553, an enticement case (alienation of affection--right of wife to recover for loss of consortium) stated:

The modern rule is thus well stated by the Court of Appeals of New York: "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 to his 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."

Based upon the ruling of the U.S. Supreme Court in Hitaffer v. Argonne, Mrs. Miller joined with her husband in filing a claim against Missouri Pacific Transportation Company for the wrongful injury he had sustained. Mrs. Miller sought damages for the loss of her husband's comfort, companionship and services. Circuit Judge Elmo Taylor tried the case. He was the same judge who had denied the widow's claim for loss of consortium in Short v. Hogan Construction Co. (See "Get the Facts"). However, in the Miller case, Judge Taylor was persuaded to change his opinion. He submitted the issue to the jury. The jury returned a favorable verdict for Mr. Miller for his injuries and for Mrs. Miller for the loss of consortium. At this time, only three other courts in the United States, plus the District of Columbia, had recognized the wife's right to make such a recovery. The Missouri Pacific appealed the judgment. The Supreme Court of Arkansas (Justice Holt dissenting) affirmed the award for Mrs. Miller for the loss of consortium. The court followed a Georgia decision, which had been cited persuasively by my partner, Henry Woods, in his brief and eloquent argument, which held:

It is as much the duty of this court to restore a right which has been erroneously withheld by judicial opinion as it is to recognize it properly in the first instance.
It is appropriate in this day, when human rights are on the tongues and in the hearts and minds of men, women, and children everywhere, and where the very existence of civilization depends on whether fundamental human rights shall survive, for this court to recognize and enforce this right of a wife, a right based on the sacred relationship of marriage and home. Answering the defendant in error's argument, we do indeed have a 'charge to keep,' but that charge is not to perpetuate error or to allow our reasoning or conscience to decay or to turn deaf ears to new light and new life... [Brown v. Tennessee Coaches, 77 S.W. 2d 24). (Emphasis supplied.)

Thus justice was done. Another advance was made in the courts to achieve for women, under the law, first class citizenship in our free society.
Other courts have followed Miller v. Missouri Pacific. The Court of Appeals in New York, in the case of Millington v. Southeastern Elevator Co., 22 N.Y.2d 498 (1968), stated:

[T]he concept of consortium includes not only loss of support or services, [but] it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more. . . Consequently, the interest sought to be protected is personal to the wife. 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. To describe the loss as "indirect" is only to evade the issue. The loss of companionship, emotional support, love, felicity and sexual relations are real injuries. The trauma of having to care for a permanent invalid is known to have caused mental illness.

Described in the past as a "parasitic" claim and is still regarded today by many plaintiff's attorneys as a "throwaway" element of damage. Judges and juries are beginning to recognize the wife's claim as being on an equal basis with the husband's. The plaintiff's lawyer who treats it as a minor element of the damages or as a "throwaway" claim, not to be dwelt upon or emphasized to the jury, is derelict in the representation of his client.

Incidents sometimes occur during a trial that, though having no bearing on the issues involved, are fixed in one's memory. D. W. Miller, following his injury on the Missouri Pacific coach, had an onset of multiple sclerosis. The defendant, Missouri Pacific Transportation Co., contended that multiple sclerosis was a disease and could not be caused by trauma. The treating physician, an eminent neurologist from Memphis, Tennessee, came to Helena, Arkansas to testify. He stated that based upon his own experience and his research of the literature, 15% of the cases of multiple sclerosis were caused by injury and, in his opinion, the most probable cause of Mr. Miller's paralysis was the trauma he sustained in the accident. The doctor was excused following his testimony.
I had just completed direct examination of another witness when the bailiff approached the counsel table, where Henry Woods, my partner, and I were seated. He had an urgent message from the doctor, who was in the hall outside the courtroom and wanted to see me. Henry went out to see the doctor and to appease his anxiety. Henry soon returned and announced to me that the doctor wanted his fee of $500.00 for his time and expense and he wanted it now. In 1956, when our law practice was just getting underway, $500 was a lot of money and we didn't have it. Nevertheless, to oblige the doctor and be able to continue our case without a disturbance, we wrote him a check. At the first recess, we called our partner, Leland Leatherman, and asked him to cover the check. The check was honored when presented.

Mrs. Miller won a victory for women's rights in Arkansas and set a precedent for other states to follow. She proved that an ancient right, long withheld, can be made viable by a trial lawyer in a court of law.

Mrs. Miller's victory further illustrates that a jury, given the facts and correctly instructed on the law, will do justice--and justice for all citizens, including women and children, of all races, is the hallmark of an enduring, civilized country.