Hitaffer v. Argonne Co.

• Decision Date: 29 May 1950
• Docket Number: No. 10235.,10235.
• Citation: 183 F.2d 811
• Parties: HITAFFER v. ARGONNE CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

183 F.2d 811 (1950)

HITAFFER v. ARGONNE CO., Inc.

No. 10235.

United States Court of Appeals District of Columbia Circuit.

Argued January 9, 1950.

Decided May 29, 1950.

Writ of Certiorari Denied October 16, 1950.

Mr. Edgar A. Wren, Washington, D. C., for appellants.

Mr. J. Harry Welch, Washington, D. C., with whom Messrs. H. Mason Welch, John R. Daily, J. Joseph Barse and Frank L. Shigo, all of Washington, D. C., were on the brief, for appellee.

Before CLARK, WILBUR K. MILLER and FAHY, Circuit Judges.

Writ of Certiorari Denied October 16, 1950. See 71 S.Ct. 80.

CLARK, Circuit Judge.

The appeal in the instant case presents two problems. The first involves the question of whether or not a wife has a cause of action for loss of consortium resulting from a negligent injury to her husband, and the second entails an interpretation of the breadth of the exclusive liability provisions¹ of the Longshoremen's and Harbor Workers' Compensation Act,² (hereinafter referred to as the "Act"), the applicable Workmen's Compensation statute for the District of Columbia,³ which provides exclusive liability for employers.

Appellant's husband was injured while in appellee's employ. As a result thereof he suffered and sustained severe and permanent injuries to his body and in particular in and about his abdomen, and as a consequence appellant has been deprived of his aid, assistance, and enjoyment, specifically sexual relations.

The appellant's husband thereafter received compensation for his injuries pursuant to the provisions⁴ of the aforesaid Workmen's Compensation statute.

Subsequently, the instant action was filed by the wife. The defendant-appellee thereupon moved for a summary judgment on the grounds that the court lacked jurisdiction and the complaint failed to state a cause of action. The motion was granted and judgment entered for appellee. This appeal has followed to test the validity of that order.

Inasmuch as it would be unnecessary for us to decide the statutory question if it be found that the complaint fails to state a cause of action, we shall first deal with the question of whether or not a wife may bring an action for loss of consortium in cases where the injury to the husband resulted from the defendant's negligence.

Although this is the first time this question has been presented to this court, we are not unaware of the unanimity of authority elsewhere denying the wife recovery under these circumstances.⁵ As a matter of fact we have found only one case in which the action was allowed,⁶ and that authority has since been effectively overruled.⁷ But after a careful examination of these cases we remain unconvinced that the rule which they have laid down should be followed in the District of Columbia. On the contrary, after piercing the thin veils of reasoning employed to sustain the rule, we have been unable to disclose any substantial rationale on which we would be willing to predicate a denial of a wife's action for loss of consortium due to a negligent injury to her husband.

Analysis of the cases in opposition to the position which we are taking in this opinion will reveal that the synthesizations which follow are fairly representative of the sundry reasons assigned for denying the wife a right of recovery.

One group of cases base their results on the theory that although in the abstract the term "consortium" contains, in addition to material services, elements of companionship, love, felicity, and sexual relations, in cases of injury to the consortium resulting from negligence the material services are the predominant factor for which compensation is given.⁸ From this point they variously argue: (1) That since the wife has no right as such to her husband's services, she has no cause of action, although, of course, the husband, having always been entitled to his wife's services, still has a right of action;⁹ (2) That the Emancipation Acts,¹⁰ having given a wife a right to the fruits of her own services, have placed the husband in the same position as the wife in number (1) so that neither may bring an action,¹¹ except that a husband may recover for monies actually expended.¹² The difficulty with adhering to these authorities is that they sound in the false premise that in these actions the loss of services is the predominant factor. This distinction lacks precedent.¹³ It is nothing more than an arbitrary separation of the various elements of consortium devised to circumvent the logic of allowing the wife such an action. The development of this fiction has been attributed to the use of words.

"Redundancy, in common law pleading is familiar to all lawyers. Thus when pleading alleged loss of services, conjugal affection, companionship, etc., no distinct functions were intended. It is the same kind of verbiage that we still use in deeds, wills and pleadings. On this, however, has been postulated an absurd division of consortium into services on the one hand, and conjugal affection, etc., on the other. The cases show that this separation is arbitrary and, in the main, fictitious."¹⁴

Consortium, although it embraces within its ambit of meaning the wife's material services, also includes love, affection, companionship, sexual relations, etc., all welded into a conceptualistic unity. And, although loss of one or the other of these elements may be greater in the case of any one of the several types of invasions from which consortium may be injured, there can be no rational basis for holding that in negligent invasions suability depends on whether there is a loss of services. It is not the fact that one or the other of the elements of consortium is injured in a particular invasion that controls the type of action which may be brought but rather that the consortium as such has been injured at all. Hence we are constrained to reject the cases which refuse to allow the wife to sue in these actions for the reason that we are unable to accept the premise. We likewise reject those cases which go one step further in disallowing the husband such an action for the further reason that he has always been allowed to sue for loss of his consortium due to negligence in this jurisdiction.

Another group of cases which similarly appear to place principal emphasis on the element of services in these actions hold that in negligent invasions of the consortium the wife has no cause of action because the husband, who is under a legal duty to support his wife according to his station in life, recovers in his action for the tort, as an element of his damages, for any impairment of his ability to perform his obligation, and thus the wife indirectly recovers for the value of any loss of her consortium. Any other conclusion, they reason, would result in a double recovery. The husband, on the other hand, is allowed the action when the wife is injured, because she is under no corresponding duty to him.¹⁵ Of course, as we have already pointed out, there is no foundation for the statement that the predominant factor involved in negligence cases of this type is the element of material services. For that reason we cannot accept their argument. There is more to consortium than the mere services of the spouse. Beyond that there are the so-called sentimental elements to which the wife has a right for which there should be a remedy. We do agree, however, that if the wife is allowed to sue, there could be a double recovery in regard to the service element of consortium, if the husband's recovery is not taken into account in measuring the wife's damages and we shall deal with the problem hereinafter in more detail.

Other cases following the reasoning of the foregoing authorities have realized, however, that the sentimental elements of the consortium are injured in negligent invasions. Thus, in order to deny the wife a right to recover for love, affection, conjugal relations, etc., they have variously concluded: (1) That in negligence cases the purpose of the damages is to compensate the injured person for the direct consequences of the wrong. The injury to the wife is indirect and so not compensable;¹⁶ (2) That her injuries are too remote and consequential to be capable of measure;¹⁷ (3) That the common law recognized no cause of action for the loss of the so-called sentimental elements of consortium and the acts have given the wife no new cause of action;¹⁸ and (4) That no action for loss of consortium was ever allowed in which there was no showing of the loss of some services, and since the wife cannot show such a loss she has no action.¹⁹ None of these cases commend themselves to us on the basis of their logic.

As to those authorities which hold that the injury to the wife is not compensable because it is indirect, we simply state that if that be so then it would likewise be true in the husband's suit. But such is not the rule here. Invasion of the consortium is an independent wrong directly to the spouse so injured.²⁰ The mere fact that the loss of one or the other of the elements thereof may have been indirectly redressed in another's suit, does not make the injury to the remaining elements any less direct.

The argument that the injuries of which a wife complains are too remote and consequential fails for two reasons. In the first place, we are committed to the rule in negligence cases that where in the natural and continual sequence, unbroken by any intervening cause, an injury is produced which, but for the negligent act would not have occurred, the wrongdoer will be liable.²¹ And it makes no difference whether or not that particular result was foreseeable.²² Secondly, if such a rule were valid there could be no basis for distinguishing between an action by a husband and one by the wife. In both cases the damages for the sentimental elements would be too remote and consequential; and yet we do not apply such a rule in the husband's action. And, furthermore, there could be no reason for the allowance of an action for criminal...