Black v. United States

• Court: U.S. District Court — District of Utah
• Writing for the Court: Max K. Mangum, of Mulliner, Prince & Mangum, Salt Lake City, Utah, for plaintiffs
• Citation: Black v. United States, 263 F.Supp. 470 (D. Utah 1967)
• Decision Date: 08 February 1967
• Docket Number: No. C 138-66.,C 138-66.
• Parties: Lorraine Kimball BLACK and Reading Black, Plaintiffs, v. UNITED STATES of America and Philco Distributors, Inc., Defendants.

263 F. Supp. 470

Lorraine Kimball BLACK and Reading Black, Plaintiffs, v. UNITED STATES of America and Philco Distributors, Inc., Defendants.

No. C 138-66.

United States District Court D. Utah, Central Division.

February 8, 1967.

Max K. Mangum, of Mulliner, Prince & Mangum, Salt Lake City, Utah, for plaintiffs.

Ralph Klemm, Asst. U. S. Atty., for defendant the United States.

Ray R. Christensen, of Christensen & Jensen, Salt Lake City, Utah, for defendant Philco Distributors, Inc.

MEMORANDUM DECISION

CHRISTENSEN, District Judge.

This case requires the court to determine whether in Utah a husband can maintain an action for loss of consortium by reason of negligent injury of his wife by a third person.

In the first and third claims of the amended complaint the plaintiff wife, Lorraine Kimball Black, seeks damages against the respective defendants for personal injuries which she asserts were caused by the negligence of the defendants and allegedly resulted in the loss of her right arm at the elbow joint and further amputation above the joint, hospitalization and pain and suffering, both physical and mental in nature, permanent injuries of both physical and mental nature necessitating further care, treatment and assistance during the remainder of her natural life, expenses for medical care and treatment, loss of earning power, permanent sickness, lameness, disfigurement and disablement, to said plaintiff's total damage in the sum of $150,000.

In the second and fourth claims plaintiff Reading Black refers to the same injuries allegedly suffered by his wife and further alleges:

"1. That as the husband of Lorraine Kimball Black, he is entitled to the services, aid, comfort, society and companionship of his wife, but that the injury * * * will deter and prevent him from enjoying these rights and privileges for the duration of their married life.

"2. That because of the negligent interference with these marital rights, sometimes referred to as loss of consortium, plaintiff Reading Black has suffered damages at the hands of the defendant in the total amount of Twenty-Five Thousand Dollars ($25,000)."

Co-defendants, United States of America and Philco Distributors, Inc., have moved to strike the second and fourth claims on the contention that Utah law does not recognize the right to recover damages for loss of consortium. These motions have been orally argued and briefed and the parties have now submitted them for decision. The question seemingly has not been expressly considered or decided before in any published opinion in this state.

Under the Federal Tort Claims Act¹ damages may be allowed to either party to the marriage contract for loss of consortium caused by injury to the spouse where consortium is a proper element of damage under state law.² Hence, the motions of the respective defendants present precisely the same question.

At common law a husband had a claim for loss of consortium against one who negligently injured his wife, though the wife had no corresponding right.³ It must be determined whether this rule with respect to a husband's rights has been modified in Utah by statute or judicial decisions and practice, or both.

Prior to statehood Utah Compiled Laws 1888 ¶ 2529 provided that either spouse may sue or be sued, plead and be impleaded, or defend and be defended at law.

Article 22 § 2 of the Constitution of Utah, (formulated in 1895) provides as follows:

"Sec. 2 Property rights of married women

"Real and personal estate of every female, acquired before marriage, and all property to which she may afterwards become entitled by purchase, gift, grant, inheritance or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations or engagements of her husband, and may be conveyed, devised or bequeathed by her as if she were unmarried."⁴

In keeping with this spirit it has been provided by statute in Utah:

"30-2-2. Wife's right to contract, sue and be sued.—Contracts may be made by a wife, and liabilities incurred and enforced by or against her, to the same extent and in the same manner as if she were unmarried."⁵

"30-2-4. Wife's right to wages—Actions for personal injury.—A wife may receive the wages for her personal labor, maintain an action therefor in her own name and hold the same in her own right, and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband."⁶

It might be interesting, if not necessary or profitable in the present inquiry, to weigh generally the conceptual, historical, practical and decisional reasons why husbands should or should not be entitled to recover damages for loss of consortium negligently occasioned by third parties, or why wives should or should not be allowed corresponding rights.⁷ It certainly is not irrelevant to note that the weight of judicial authority throughout the United States permits the former recovery even under so-called married women's acts. Yet, the history of the doctrine in Utah, the wording of the Utah Married Women's Act, and the course of pertinent legal practices and decisions here (as has been said of Utah's people) in some ways may be peculiar or unique.

Moreover, I have a peculiar responsibility in interpreting the law in diversity cases such as this—to decide such cases not necessarily in consonance with my ideas of logic, principle or weight of authority, but in harmony with the decisions of the highest court of the state. Where, as appears here, the state Supreme Court has not had occasion to pass upon the particular question, it still is my duty to ascertain the best I can from all available sources what the local law is and apply it.⁸

Section 30-2-4, Utah Code Annotated 1953, is the crucial section upon which this case turns. Its progenitor, adapted shortly after statehood, was Section 1201 of Revised Statutes of Utah 1898, which section has continued substantially unchanged down to the present time. This section in part was drawn from McClain's Annotated Code of Iowa § 3402 (1898), but inserted by our legislators was the last sentence which reads:

"There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband."

The insertion of this sentence makes the Utah statute significantly distinguishable from most other married women's acts which are construed to permit a husband's recovery for loss of consortium. But for this distinguishing factor, it could be correctly argued that when Utah enacted its statute, it adapted Iowa's body of case law interpreting that particular section up until that point of time.⁹ On the contrary, the specific wording of the Utah statute seems to reject that line of decision.

The compiler's note for Section 30-2-4 of Utah Code Annotated 1953, states that comparable provisions are found also in Illinois Revised Statutes 1949, chapter 68, § 7, and Michigan Compiled Laws 1948, § 557.11. Upon examination of these statutes it is immediately apparent that they are similar only in their treatment of the wife's right to her own earnings, and say nothing with regard to the husband's right of recovery on account of injury to his wife.

It is interesting to note Virginia's statute providing for the right of a married woman to contract, and sue and be sued. The controlling provision is Section 55-36 of the Code of Virginia 1950.¹⁰ Conceding that Virginia's statute is more specific with regard to the matter of consortium than that of Utah's, the two statutes are quite similar in many respects. Both affirmatively deny the husband a right of recovery or action for the personal injury of the wife, and in Virginia the courts have recognized that this provision denies the husband the right to maintain an action for loss of his wife's consortium.¹¹

Also of interest is Section 23-205 of Kansas Statutes Annotated¹² when compared to Utah's corresponding statute. Once again some affirmative provision is made providing that any right of action for personal injury to the wife shall vest solely in her to the exclusion of her husband. Enacted in 1921, it has subsequently been held that this statute eliminated the husband's separate cause of action.

There has been singularly little litigation in Utah involving claims based on loss of consortium.

In Paul v. Kirkendall, 1 Utah 2d 1, 261 P.2d 670 (1953), in allowing recovery for loss of consortium, the Utah Supreme Court said:

"As to the basis of the jury award of $5,000 to Mr. Paul for loss of his wife's services, the jury could properly consider not only the household help necessary up to the date of the trial, for which respondents were compensated in special damages, but could also consider the fact that work for which help was hired was not all that previously performed by Mrs. Paul. Edminster v. Thorp, 101 Cal.App.2d 756, 226 P.2d 373. The award must also include the cost of hiring help in the future, as well as damages for those services rendered in the relationship of husband and wife beyond the duties of servants, and this court cannot say as a matter of law that the diminution in the services performed by the wife is to be valued at less than $200 per year for the rest of her life."

This case initially was cited as primary support for plaintiff's contention that Utah law recognized such a right. Later plaintiff's counsel forthrightly conceded...