Brown v. Curtin & Johnson, Inc., 12210.

• Decision Date: 24 March 1955
• Docket Number: No. 12210.,12210.
• Citation: 95 US App. DC 234,221 F.2d 106
• Parties: Myrtle V. BROWN, Appellant, v. CURTIN & JOHNSON, Inc., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 US App. DC 234, 221 F.2d 106 (1955)

Myrtle V. BROWN, Appellant, v. CURTIN & JOHNSON, Inc., Appellee.

No. 12210.

United States Court of Appeals, District of Columbia Circuit.

Argued January 7, 1955.

Decided March 24, 1955.

Mr. George B. Parks, Washington, D. C., with whom Mr. Walter E. Washington, Washington, D. C., and Mrs. Juanita K. Stout, Philadelphia, Pa., were on the brief, for appellant.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. Paul R. Connolly, Jr., Washington, D. C., was on the brief, for appellee. Mr. John P. Arness, Washington, D. C., entered an appearance for appellee.

Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.

PER CURIAM.

This case raises the question whether the decision in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, certiorari denied, 1950, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, should be extended to a case of fatal injury. We there held that a wife could recover damages from her husband's employer for loss of consortium where the husband had received a non-fatal industrial injury, even though an award had been made for the injury under the Workmen's Compensation statute.¹ The District Court subsequently held that in cases where the injury causes death, and the widow sues for loss of consortium, no recovery can be had. Brown v. Curtin & Johnson, D.C.D.C.1954, 117 F.Supp. 830, the case at bar; O'Neil v. Shelton Bros. Trucking Co., D.C.D.C.1953, 116 F.Supp. 654; Ciarrocchi v. James Kane Co., D.C.D.C.1953, 116 F.Supp. 848. As was pointed out in the O'Neil case:

"At common law * * * a wife has no right of action for loss of consortium or other injury on account of the death of her husband by wrongful act, as she is held to have in Hitaffer in the case of his injury. Plaintiff is therefore precluded from maintaining such a separate action under the common law. Her sole right of action in case of death by wrongful act must be found in the Wrongful Death Statute D. C.Code § 16-1201 (1951), but an action thereunder may only be maintained by the personal representative and if the wrongful act was one which would have entitled her husband to maintain it had death not ensued. Because of the exclusive liability provisions of the Compensation Act 33 U.S.C.A. § 905 (1952) * * * that would have been forbidden to the husband, and therefore it follows that it is forbidden to the wife. In addition, all right to damages has been superseded by the express provisions of the Compensation Act itself and by the award and acceptance by her of

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