Igneri v. Cie. de Transports Oceaniques

Decision Date18 September 1963
Docket NumberNo. 351,Docket 27801.,351
Citation323 F.2d 257
PartiesPeter IGNERI and Theresa Igneri, Plaintiffs-Appellants, v. CIE. de TRANSPORTS OCEANIQUES, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Philip F. DiCostanzo, DiCostanzo, Klonsky & Sergi, Brooklyn, N. Y., Robert Klonsky, Brooklyn, N. Y., of counsel, for plaintiffs-appellants.

Thomas J. Short, Dougherty, Ryan, Mahoney & Pellegrino, New York City, for defendant-appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.

The issue, here presented for the first time in a federal Court of Appeals, is whether the wife of an injured longshoreman can recover for the loss of her husband's consortium caused by negligence of the shipowner or unseaworthiness of the ship. Two other district judges have concluded, as Judge Bartels did here, that she cannot. Bergamaschi v. Isthmian Lines, Inc., 1959 A.M.C. 1862 (S.D.N.Y.); Pruitt v. M. S. Rigoletto, 211 F.Supp. 295 (E.D.Mich.1962). We agree.

Peter and Theresa Igneri, husband and wife, brought this action in the District Court for the Eastern District of New York against Cie. de Transports Oceaniques. Their complaint invoked federal jurisdiction on the basis of diverse citizenship, the Igneris being alleged to be citizens of New York and defendant a foreign corporation. In a "First Cause of Action," Peter Igneri claimed damages for injuries sustained when he was struck by a bale of rubber while working as a longshoreman, in the employ of a stevedoring contractor, aboard defendant's vessel in Brooklyn harbor. The injuries are claimed to be permanent and to include a fracture of the spine with complete paralysis of the lower extremities and bladder; liability was asserted on the bases of negligence by the shipowner and of unseaworthiness of the vessel. In a "Second Cause of Action," Theresa Igneri sought further damages on the ground that "heretofore and for many years prior to this occurrence she and Peter Igneri * * * were and still are husband and wife, living together as such and in a happy connubial state * * *" and that as a result of the occurrence she "has been deprived of the services of her husband, Peter Igneri, his companionship, support, love, affection and consortium, as well as all facilities and domiciliary happiness normally enjoyed in normal marriage." Judge Bartels granted defendant's motion to dismiss the second cause of action as failing to state a claim upon which relief could be granted, 207 F.Supp. 236. Subsequently he amended his order to include the statement specified in 28 U.S.C. § 1292(b); we granted a timely application by Mrs. Igneri for leave to appeal, since the appeal presented a question of novel impression which ought be determined at this time so that, in the event of our disagreeing with the district judge, the two claims could be tried together.

(1) We begin by noting our approval of Judge Bartels' overruling an argument by defendant, which indeed has not been seriously pressed in this Court, that Mrs. Igneri's claim must be dismissed because, the action having been brought on the "law side", New York law controls and New York does not recognize a wife's claim for loss of consortium. Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898 (1958).

Mrs. Igneri's claim is governed not by the law of New York but by the general maritime law. Although she was not aboard ship, it was the impact on her husband, which occurred on navigable waters, that caused the injury to her. Jordan v. States Marine Corp., 257 F.2d 232 (9 Cir., 1958); Pruitt v. M. S. Rigoletto, supra. The same considerations as to the desirability of uniformity that are relevant to the relations between a ship and those who work upon her apply with like force to claims by a worker's wife resulting from an injury to him. Suits by a husband, father, or wife for injury allegedly resulting from a shipboard accident to a family member have uniformly been held to involve maritime torts. New York & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (3 Cir., 1912); Plummer v. Webb, 19 F.Cas. 891, 892-893 (No. 11,233) (C. C. Maine 1827); Pruitt v. M. S. Rigoletto, supra; Westerberg v. Tide Water Associated Oil Co., 304 N.Y. 545, 110 N.E.2d 395 (1953). The wrong to Mrs. Igneri, if any, being maritime, it is unnecessary to do more than cite Garrett v. Moore-McCormack Co., 317 U.S. 239, 244-245, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410, 74 S.Ct. 202, 98 L.Ed. 143 (1953); and Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), for the proposition that if the maritime law recognizes a claim such as that here asserted, this could not be defeated by a contrary New York rule.1

(2) Although New York's denial of a claim by a wife for loss of consortium is thus in no way decisive, it does not follow that reference to the common law generally is without relevance. Maritime law draws on many sources; when there are no clear precedents in the law of the sea, admiralty judges often look to the law prevailing on the land. See Gilmore and Black, Admiralty (1957), § 1-16. At least this much is true. If the common law recognized a wife's claim for loss of consortium, uniformly or nearly so, a United States admiralty court would approach the problem here by asking itself why it should not likewise do so; if the common law denied such a claim, uniformly or nearly so, the inquiry would be whether there was sufficient reason for an admiralty court's nevertheless recognizing one. Compare The Harrisburg, 119 U.S. 199, 213-214, 7 S.Ct. 140, 30 L.Ed. 358 (1886). So we turn to the common law.

It was early held, and still is in the great majority of American states, that one who causes personal injury to a married woman, intentionally or negligently, is subject to liability to her husband for loss of consortium2 as well as for any reasonable expenses incurred by him in providing medical treatment. American Law Institute, Restatement of Torts (1938), § 693; see Prosser, Torts (2d ed. 1955), at 701; Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Colum.L.Rev. 1341, 1348-49 (1961). But until 1950 no decision (save for two that were rather promptly disapproved3) allowed a recovery by a wife for loss of consortium resulting from a negligent injury to her husband. Restatement of Torts, supra, § 695; 1 Harper & James, Torts (1956), at 641; Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 2-4 (1923). In that year the Court of Appeals for the District of Columbia Circuit, in Hitaffer v. Argonne Co., 87 U.S.App. D.C. 57, 183 F.2d 811, rejected the monolithic authority to the contrary and held, under the domestic law of the District,4 that a wife could obtain such a recovery. Since 1950 eight state courts have followed the Hitaffer decision,5 federal courts have interpreted the law of two other states to the same effect,6 and in one state the same result has been achieved by statute.7 As against the 12 American jurisdictions8 which may thus be said to have espoused the Hitaffer result, 19 such jurisdictions, which have considered the question since Hitaffer, have continued to deny recovery to a wife.9 So also has the House of Lords, Best v. Samuel Fox & Co., 1952 A.C. 716, without a dissenting voice. However, in a number of these cases the opinions have made it plain, and others have implied, that the court agreed with Hitaffer in principle but felt constrained to leave any "change in the common law" to the legislature.10 The commentator vote has been considerably more favorable to the Hitaffer result than the judicial. We have found only two voices,11 but these notable ones, against the wife's recovery.12

The prime argument for the Hitaffer result is equality between the sexes. Since the husband's cause of action for negligent invasion of consortium is generally recognized, it is said to fly in the face of the modern policy favoring the "emancipation" of married women to deny a corresponding action to the wife, whose "interest in the undisturbed relation with her consort is no less worthy of protection than that of her husband." Prosser, supra, at 704; see Hitaffer v. Argonne Co., supra, 183 F.2d at 819; cf. Bennett v. Bennett, 116 N.Y. 584, 590-91, 23 N.E. 17, 18-19, 6 L.R.A. 553 (1889). The wife's interest in the marital relation having long been accorded legal protection by claims for alienation of affections and similar torts, see Bennett v. Bennett, supra, it is argued that "relief is extended to the wife in these * * * cases for one basic reason, the interest of society in the protection of the family * * *. If this is the interest to be protected, * * * the law's protection should extend as well to the negligent as to the intentional injury." Montgomery v. Stephan, supra note 5, 101 N.W.2d at 234; see Lippman, supra, 30 Colum.L.Rev. at 668. The "intentional" nature of such torts as alienation of affections is said not to afford a valid reason to "invoke the principle which gives a right of action for an act done malevolently when no right of action would exist if the act were done without malice," since in such torts "there is never that active malevolence toward the plaintiff which is made the gist of the right of action." Holbrook, supra, 22 Mich.L.Rev. at 8.13 Finally, it is urged that the harm done to the wife through serious injury to the husband is undeniably real, if only because "a sick, lame, nervous spouse is less desirable as a companion than a spouse in normal physical condition," Holbrook, supra, 22 Mich.L.Rev. at 8, but more especially when the injury permanently forecloses the wife's opportunity of having sexual relations and bearing children. Hence, it is said, the law should grant the wife such compensation as it can for the harm that she has suffered, and will continue to suffer, through the...

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