Bates v. Donnafield, 3894

• Decision Date: 24 February 1971
• Docket Number: No. 3894,3894
• Citation: 481 P.2d 347
• Parties: Kenneth A. BATES and Shirley Ann Bates, Appellants (Plaintiffs below), v. W. S. DONNAFIELD and Violet Donnafield, d/b/a Donnafield Used Cars and Parts, and John W. Shassetz, Paul W. Shassetz and Pete Gillis, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 347

481 P.2d 347

Kenneth A. BATES and Shirley Ann Bates, Appellants (Plaintiffs below), v. W. S. DONNAFIELD and Violet Donnafield, d/b/a Donnafield Used Cars and Parts, and John W. Shassetz, Paul W. Shassetz and Pete Gillis, Appellees (Defendants below).

No. 3894.

Supreme Court of Wyoming.

Feb. 24, 1971.

Charles R. Spratt, Buffalo, Hunter Patrick, Powell, for appellants.

Redle, Yonkee & Arney and Rex O. Arney, Sheridan, for appellees.

Before McINTYRE, C. J., and PARKER, Mc,EWAN and GRAY, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiffs, husband and wife, filed an action for damages arising out of a motor vehicle accident occurring just west of Clearmont on the evening of March 17, 1969. As developed by the pleadings and pretrial proceedings, the essential facts are that Kenneth A. Bates was driving his 1964 Rambler station wagon easterly from Buffalo to Clearmont when there occurred a collision between his vehicle and, first, a trailer traveling in the opposite direction, towed by a wrecker truck driven by Paul W. Shassetz, and next, a dump truck driven by Paul's brother, John, the Shassetzes being in the employ of the Donnafields. The Rambler was demolished and Bates was seriously injured, his wife joining him as plaintiff because of loss of consortium. ¹

It is undisputed that the Shassetz brothers, employees of the Donnafields, had gone to the oil fields near Biddle, Montana, to transport a burned-out trailer house to the Donnafields' auto parts business in Sheridan. The trailer house was in large part collapsed and placed on a twelve-foot wide trailer, towed by a wrecker, and followed by the dump truck; both were preceded by a lead car driven by Pete Gillis, who, according to the parties' stipulation, was an employee of the Donnafields. The scene of the accident was in the vicinity of a narrow (some seventeen feet) bridge in a two-lane, hard-surfaced highway, approximately nineteen feet in width. The evidence showed the demolition of the Bates' station wagon and injuries to Bates. There was serious conflict as to the exact time of the wreck and the light conditions. Plaintiff, Kenneth Bates, and witnesses contended that it was approximately seven o'clock, dark or growing dark with the necessity for lights, and defendants indicating on the contrary it was somewhere between six and six-thirty, that the sun was not yet down or just setting. ² Other conflicts related to the position of the trailer, as being on its own side of the road or across the center line, and Bates' speed, which he said was forty-five miles an hour, and defendants' witnesses estimated to be sixty to sixty-five miles per hour.

The cause was tried to a jury and at the conclusion of the evidence defendants moved for an instructed verdict, which motion was denied as to Bates, but granted as to Mrs. Bates 'for the reason that in the absence of a statute in the State of Wyoming the common law precludes the recovery of a wife for loss of consortium.' The jury rendered a verdict for defendants and judgment was entered accordingly. Plaintiffs have appealed, arguing that the direction of the verdict against Mrs. Bates was error as a matter of law, that the court improperly received a 'Wide Load' sign in evidence over plaintiffs' objection, and that the court improperly refused certain photographs relating to the trailer. We find these grounds afford no basis for reversal.

Direction of Verdict Against Wife

Plaintiffs' charge of error against the wife is threefold: (1) the damage to the automobile was unquestioned as was her joint ownership of it and she was accordingly entitled to recover from defendants; (2) the damage to the wife was unchallenged and under the rule that should be adopted a wife may recover from third parties for her loss of consortium resulting from injury to the husband caused by defendants' negligence; (3) the improper direction of the verdict against the wife was a strong influence on the jury and prejudiced the rights of the husband.

Plaintiffs mention the first point only casually, saying that the directed verdict against the wife was error in that it deprived her of her right to have her damage claim for the automobile tried to the jury. No cogent argument or authorities are presented to support the contention and for that reason it merits no consideration in the appeal. Stolldorf v. Stolldorf, Wyo., 384 P.2d 969, 973; School District No. 9, in County of Fremont v. District Boundary Board in and for Fremont County, Wyo., 351 P.2d 106, 109.

The argument that a wife should recover from third parties for loss of consortium caused by their negligence resulting in injuries to the husband is predicated upon the view that the common law rule long prevailing in the United States is for various reasons unwarranted and that this court should follow what plaintiffs contend to be a definite trend to overrule it. Counsel concede that at common law although a husband had a cause of action for the loss of consortium for injuries to his wife caused by the negligence of a third party the wife, as indicated in 41 C.J.S. Husband and Wife § 404, had no such cause for injuries negligently inflicted on her husband. Research in this field indicates much discussion of the subject by courts as well as in legal periodicals and, as argued, there has been some trend in modern courts toward the rejection of the rule that prevented the wife's recovery for the loss of consortium. The status of the matter is shown by a discussion in 41 Am.Jur.2d Husband and Wife § 458 and in the cited Annotation, 23 A.L.R.2d 1378, with 19-24 A.L.R.2d Later Case Service 735-744 (1970) bringing it up to date, that latter at 740 citing many cases still holding that the wife has no right of action for loss of consortium resulting from negligent injury to her husband.

This court has never had occasion to pass upon the exact point now in issue, but in Druley v. Houdesheldt, 75 Wyo. 155, 294 P.2d 351, 352, 296 P.2d 251, we said it was axiomatic that in the absence of statutory provision the common law applies in Wyoming; and under an extension of this rationale, the rule that the wife is precluded from recovery in an instance such as the one before us would be applicable.

In Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, 816, 340 P.2d 759, we said:

'* * * We do not * * * agree that an ancient doctrine firmly imbedded in that great body of Anglo-Saxon law which we inclusively refer to as the 'Common Law', and which became that law through early usage and custom, can be judicially abrogated any more than courts are authorized to abolish statutory law because in their opinion the reason for the legislative enactment no longer justified the continuance of the law. That which is considered to be the merit of a law is not the criterion upon which courts base their decisions as to a law's continued existence. * * *'

That pronouncement is generally consistent with other statements of similar import. Bondurant v. Board of Trustees of Memorial...