Bevis v. Armco Steel Corp.

• Decision Date: 05 December 1951
• Docket Number: No. 32676,32676
• Citation: 156 Ohio St. 295,102 N.E.2d 444,46 O.O.2d 172
• Parties: , 46 O.O. 172 BEVIS v. ARMCO STEEL CORP.
• Court: Ohio Supreme Court

Page 295

156 Ohio St. 295

102 N.E.2d 444, 46 O.O. 172

BEVIS v. ARMCO STEEL CORP.

No. 32676.

Supreme Court of Ohio.

Dec. 5, 1951.

Syllabus by the Court.

A wife may not maintain an action against an Ohio employer who has complied with the Workmen's Compensation Act of Ohio to recover damages for an alleged loss of consortium due to such employer's intentional, wrongful and malicious act, where such loss of consortium has resulted from a compensable occupational disease of her husband occasioned in the course of and arising out of his employment in Ohio by such employer.

Plaintiff filed a petition in the Common Pleas Court stating that the defendant employed plaintiff's husband as a bricklayer from 1928 until he became totally disabled due to silicosis in 1944, and 'that during said period * * * plaintiff was living and consorting with * * * her husband, as the defendant well knew, and * * * continued to' do so 'until the peace and welfare of her home was destroyed by the unlawful, wilful, malicious and wrongful acts on the defendant in that:

'The defendant by and through its agents, representatives, and medical examiners, and defendant being fully aware that defendant's medical examinations of plaintiff's husband in 1941, 1942, and April 1944 and the X-rays then made disclosed that plaintiff's husband had contracted silicosis, and defendant being fully aware that old tuberculosis lesions existed in the right upper lobe of the lungs of plaintiff's husband, and defendant being fully aware of the insidious and dangerous character of silicosis when coexisting with tuberculosis lesions, and defendant knowing that plaintiff's husband was ignorant of his silicotic condition and of the effect that continuing on his job would have under such circumstances did knowingly, wilfully, intentionally, and fraudulently represent to plaintiff's husband orally, and on April 7, 1944 in writing that there existed 'no evidence of silicosis' in his lungs, * * * that her husband * * * by reason of such intentional, wilful, and fraudulent acts of the defendant did not discover until June 1945 that he had silicosis coexisting with tuberculosis lesions in his lungs * * * and that by reason of such intentional wrongful acts of the defendant the plaintiff's husband became unfitted and incapable to to give the affection, society, companionship, and consortium he had formerly given and which were due to plaintiff as his wife, and defendant knowingly, wilfully, and wrongfully deprived plaintiff of the affection, society, companionship and consortium of her husband.'

Plaintiff's petition states further that she had been damaged in the sum of $50,000 and prays for judgment against the defendant in that amount.

Defendant filed an answer reading in part:

'For a second defense to plaintiff's petition, defendant says that, during the period in which plaintiff alleges her husband was employed by defendant and sustained the alleged bodily condition complained of, the workmen's compensation law of Ohio * * * was in full force and effect; and that defendant was amenable to said law by reason of the employment of three (3) or more workmen or operatives regularly in the same business under a contract of hire; and that defendant had complied with the provisions of the said law by having been authorized by the Industrial Commission of Ohio to pay compensation direct to its injured employees. Further defendant says that by reason of its compliance with the workmen's compensation law of Ohio, and by reason of Article II, Section 35 of the Constitution of Ohio and Ohio General Code Section 1465-70, the plaintiff has no cause of action against the defendant.'

To this answer plaintiff filed a reply which reads, so far as it relates to the second defense in the defendant's answer:

'* * * plaintiff * * * for reply to the second defense set forth in defendant's answer filed herein denies that she sues either as an employee or employee's dependent; and denies that the workmen's compensation law of Ohio bars this action for injury to plaintiff's 'own personal right and property' legally brought in plaintiff's own name.'

Thereafter, the Common Pleas Court rendered a judgment, the nature and character of which is clearly indicated by the following provisions of its journal entry:

'This matter came on to be heard at the request of plaintiff and by agreement of counsel on the second defense in the answer of the defendant, the reply thereto, the evidence offered in support of said second eefense by the defendant and the argument and briefs of counsel.

'On consideration thereof the court finds that the defendant herein had fully complied with the provisions of the workmen's compensation law of Ohio * * * by having been authorized by the Industrial Commission of Ohio to pay compensation direct to its injured employees, as alleged in said second defense of its answer. The court further finds that said second defense is a good and valid defense to the cause of action alleged in plaintiff's petition and that the plaintiff herein has no cause of action against the defendant.

'Wherefore it is ordered, adjudged and decreed that the petition filed herein be dismissed * * *.'

This judgment of the Common Pleas Court was affirmed by the Court of Appeals.

The cause is now before this court on appeal, pursuant to allowance of a motion to certify the record.

Louis C. Capelle and Robert E. Brooks, Cincinnati, for appellant.

Frost & Jacobs, Cincinnati, G. W. A. Wilmer, Middletown, Harold J. Siebenthaler, Henry Wise Hobson, Jr., Cincinnati, Richard A. Wilmer and John A. Wilmer, Middletown, for appellee.

TAFT, Judge.

Plaintiff's assignment of error in this court describes her action as 'a wife's action for loss of consortium due to the defendant's intentional, wrongful and malicious act.' Defendant apparently concedes that there was such a cause or right of action in this state at common law. See Flandermeyer v. Cooper, 85 Ohio St. 327, 98 N.E. 102, 40 L.R.A., N.S., 360, Ann.Cas.1913A, 983.

From the allegations of the petition, it is clear that the injury, for which the plaintiff seeks damages, resulted entirely from an occupational disease of her husband which was occasioned in the course of and arose out of his employment by the defendant.

Therefore, the question to be decided in this case is whether a wife may maintain an action against an Ohio employer who has complied with the Workmen's Compensation Act of Ohio to recover damages for an alleged loss of consortium due to such employer's intentional, wrongful and malicious act, where such loss of consortium has resulted from an occupational disease of her husband occasioned in the course of and arising out of his employment in Ohio by such employer.

Admittedly, the plaintiff was nor an employee of the defendant or the dependent of a killed employee of the defendant; and, because and while her husband is still living, she cannot assert a claim for, or be eligible to receive, compensation under the Workmen's Compensation Act.

For the purpose of this opinion, we will assume that a wife who brings such an action as that asserted by the plaintiff in her petition is suing in her own right for the breach of an independent duty owing to her,--in other words, that such right of action of the wife is one independent of any right of action which her husband may have by reason of the same wrongful conduct.

Section 35 of Article II of the Ohio Constitution, which became effective in 1924, reads in part:

'For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.' (Italics added.)

In 1923, this provision of the Constitution had been amended so as to add the portion set forth in italics in the above quotation in place of the following words: 'and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employees.'

Thereafter, in 1931, the General Assembly repealed Section 1465-76, General Code, reading in part:

'But where a personal injury is suffered by an employee, or where death results to an employee from personal injury while in the employ of an employer in the course of employment * * *, and in case such injury has arisen from the wilful act of such employer or any of such employer's officers or agents, or from the failure of such employer or any of such employer's officers or agents to comply with any lawful requirement for the protection of the lives and safety of employees, then in such event, nothing in this act contained shall affect the civil liability of such employer but such injured employee, or his legal representative in case death results from the injury, may, at his option, either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury * * *.

* * *

* * *

'The term 'wilful act,' as employed in this section, shall be construed to mean an act done knowingly and purposely with the direct object of injuring another.'

These changes in the constitutional and statutory provisions relating to workmen's compensation...