Smither and Company, Inc. v. Coles

• Citation: 100 US App. DC 68,242 F.2d 220
• Decision Date: 21 February 1957
• Docket Number: No. 12804.,12804.
• Parties: SMITHER AND COMPANY, Inc., Appellant, v. Franciska T. COLES, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 68, 242 F.2d 220 (1957)

SMITHER AND COMPANY, Inc., Appellant, v. Franciska T. COLES, Appellee.

No. 12804.

United States Court of Appeals District of Columbia Circuit.

Argued September 26, 1956.

Decided February 21, 1957.

Writ of Certiorari Denied June 10, 1957.

Mr. Justin L. Edgerton, Washington, D. C., with whom Messrs. Charles E. Pledger, Jr., and Randolph C. Richardson, Washington, D. C., were on the brief, for appellant.

Mr. William E. Owen, Washington, D. C., with whom Mr. Ralph Stein, Washington, D. C., was on the brief, for appellee.

Messrs. David G. Bress and Leonard Braman, Washington, D. C. (both appointed by this Court), filed a brief as amici curiae, urging affirmance.

Mr. Paul R. Connolly, Washington, D. C., filed a brief on behalf of The Association of Casualty and Surety Companies and The American Mutual Alliance as amici curiae, urging reversal.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

Writ of Certiorari Denied June 10, 1957. See 77 S.Ct. 1299.

BURGER, Circuit Judge.

Charles E. Coles, husband of appellee, was injured in the course of employment by appellant. Coles received compensation benefits in due course, under the District of Columbia Workmen's Compensation Act.¹ This Act adopts as the compensation law for the District of Columbia the Longshoremen's and Harbor Workers' Act.²

After Coles had received the maximum benefits under the Act his wife brought action in the district court asking damages for loss of consortium as a result of the injuries sustained by Coles while working as a painter for appellant. The wife's complaint alleged negligence of the appellant in supplying its employee with a defective ladder, the breaking of which is said to have caused the fall and injury.

At the conclusion of appellee's opening argument and again after presentation of appellee's case appellant moved for a directed verdict on the ground that a separate action by a wife based on injuries sustained by her husband in the course of employment was explicitly barred by Section 5 of the Act, supra note 2, and that Hitaffer v. Argonne Co.,³ which held to the contrary, was incorrectly decided by this court. The trial judge correctly regarded himself bound by that holding and denied appellant's motion. The appellant offered no defense on the issue of liability, standing on his motion for a directed verdict and argument as to the error of the Hitaffer case.

We agree with appellant that this court incorrectly applied the controlling statute in the Hitaffer case, and for the reasons now discussed we overrule Hitaffer v. Argonne Co. as to the interpretation of Section 5 of the Act.

In deciding the Hitaffer case this court departed from two concepts previously regarded as settled; we are called upon to deal with only one of these points on this appeal.⁴ To reach the statutory question there presented, namely, the "interpretation of the breadth of the exclusive liability provisions of the Longshoremen's and Harbor Workers' Compensation Act * * *," this court had to conclude that, as a matter of common law, a wife was no longer barred from "a cause of action for loss of consortium resulting from a negligent injury to her husband."⁵ Assuming, arguendo, the wife has a separate cause of action for loss of consortium, corresponding to the separate right of the husband in that respect, the question presented by this appeal is whether 33 U.S.C.A. § 905, Section 5 of the Act, bars the right of the wife to maintain a separate action in the circumstances presented by this record.

The essential statutory provision which governs, and which we think requires our overruling of the Hitaffer case, reads:

"The liability of an employer prescribed in section 904 of this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer * * * on account of such injury or death * * *." (Emphasis added.)

We are not unmindful, to paraphrase Mr. Justice Frankfurter and Judge Learned Hand,⁶ that the literal words of a statute sometimes can be misleading, and that we do not stop but only begin with the words. Sometimes the words are such that the purposes of the statute and the entire statutory scheme must be taken into account. The words must be read and interpreted as a part of the whole.

The history of the development of statutes, such as this, creating a compensable right independent of the employer's negligence and notwithstanding an employee's contributory negligence, recalls that the keystone was the exclusiveness of the remedy. This concept emerged from a balancing of the sacrifices and gains of both employees and employers, in which the former relinquished whatever rights they had at common law in exchange for a sure recovery under the compensation statutes, while the employers on their part, in accepting a definite and exclusive liability, assumed an added cost of operation which in time could be actuarially measured and accurately predicted;⁷ incident to this both parties realized a saving in the form of reduced hazards and costs of litigation. As stated by Mr. Justice Brandeis in Bradford Electric Co. v. Clapper, 1932, 286 U.S. 145, 159, 52 S.Ct. 571, 576, 76 L.Ed. 1026, the purpose of these laws was to provide "not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinative." Thus, anything that tends to erode the exclusiveness of either the liability or the recovery strikes at the very foundation of statutory schemes of this kind, now universally accepted and acknowledged.

There is some significance in the statutory history of Section 5 of the Longshoremen's and Harbor Workers' Act. The Act is based on the New York Workmen's Compensation Law, § 11, McK. Consol.Laws, c. 67,⁸ whose "exclusive liability" clause has been termed the broadest of the three types in existence.⁹ Section 5 of the Longshoremen's Act was described by the Senate committee reporting the Longshoremen's Bill as "abolishing liability on the part of the employer except for the payment of the prescribed compensation * * *" S. Rep. No. 973, 69th Cong., 1st Sess. 16 (1926).

In 1949 Congress amended the Federal Employees Compensation Act¹⁰ by inserting an exclusive liability clause the same, in all material aspects, as Section 5 of the Longshoremen's and Harbor Workers' Act. The purpose of this amendment was "to make it clear that the right to compensation benefits under the act is exclusive and in place of any and all other legal liability of the United States or its instrumentalities * * *." S. Rep. No. 836, 81st Cong., 1st Sess. 23 (1949), U.S.Code Cong.Service 1949, p. 2135.¹¹ (Emphasis added.) From this background it can be seen Congress was necessarily interested in the employers' immunity to suits as well as in the employees' right to recovery.¹²

The "exclusive" nature of legislation delimiting an employer's liability has been consistently stressed by the Supreme Court. Such federal acts have been interpreted as pre-empting similar rights arising under state workmen's compensation laws, and also as barring common-law rights of action. In New York Central & Hudson River R. R. Co. v. Tonsellito, 1917, 244 U.S. 360, 37 S. Ct. 620, 61 L.Ed. 1194, the effect of the 1908 Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. was in issue. The father of a minor boy brought suit against the railroad for loss of his son's services on account of injuries sustained in his employment. The state court allowed recovery, ruling that the Federal Employers' Liability Act did not take away the father's right of action as it existed at common law. In reversing, the Supreme Court cited New York Central R. Co. v. Winfield, 1917, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, and Erie R. Co. v. Winfield, 1917, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057, and stated:

"There we held the Federal Employers\' Liability act `is comprehensive and, also, exclusive\' in respect of a railroad\'s liability for injuries suffered by its employees * * *. Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the State."¹³

Appellee urges that the instant Act, which was adopted in 1927, cannot be construed to bar a right not then recognized as existing in the wife, and not acknowledged by this court until 1950. The most that can be said for this argument is that Congress did not take into account that one day, whether by judicial or legislative action, a wife might be granted the right to sue for loss of consortium on account of an injury to the husband. Possibly this may be true for the legislative history is not conclusive. It is equally arguable, however, that Congress anticipated such an eventuality and the words of the statute would support that view. More important, however, the objectives of the legislation and the statutory scheme, considered as a whole, strongly if not conclusively support the result we now reach.¹⁴

The opinion in the Hitaffer case emphasized the independent nature of the wife's right to consortium, stating, "In this jurisdiction the action for loss of consortium does not stand on subrogation but arises directly from the tort." The court then proceeded to hold it "contrary to reason" that Section 5 would cut off independent rights of third persons, e. g. the "independent" right of the wife. To substantiate this latter proposition the court relied on certain contribution cases permitting a third person joint tort feasor, sued by an injured employee previously compensated under the Act, to implead the...