Casey v. Manson Const. & Engineering Co.

Decision Date14 June 1967
Citation247 Or. 274,428 P.2d 898
PartiesEsther M. CASEY, Appellant, v. MANSON CONSTRUCTION AND ENGINEERING COMPANY and Osberg Construction Company, Respondents.
CourtOregon Supreme Court

Thomas J. Curran, Portland, argued the cause and filed a brief for appellant.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before McALLISTER, C.J., and PERRY, SLOAN, GOODWIN, HOLMAN, LUSK, and HAMMOND, * JJ.

LUSK, Justice.

This is an action by a wife for the loss of her husband's consortium as the result of injury sustained by her husband through the alleged negligence of the defendants. The circuit court sustained a demurrer to the complaint based on the ground that the complaint showed that the accident in which the plaintiff's husband was injured occurred in the State of Washington where an action for loss of consortium by a wife or widow is not recognized. The plaintiff refused to plead further and judgment was entered for the defendants from which the plaintiff has appealed.

The complaint alleges the following facts: Plaintiff and her husband, Donald J. Casey, are and were at all pertinent times residents and inhabitants of Multnomah County, Oregon. The defendant Manson Construction and Engineering Company is a Washington corporation which has a registered agent for service in the State of Oregon and does business here and the defendant Osberg Construction Company is a Washington corporation licensed to do business within the State of Oregon. The defendants formed a joint adventure under the name of Manson-Osberg Company to construct a dam and its appurtenances on property owned by Washington Public Power Supply System adjacent to Packwood, Washington. In connection with this work Manson-Osberg constructed an access road running to the damsite. On or about September 9, 1963, Donald J. Casey was a business invitee upon this access road and was driving a semi-auto car tractor loaded with pipe, when the road gave way beneath the vehicle, causing it to tip over into a deep ravine. Plaintiff's husband sustained permanent injuries as a result. The defendants were negligent in the construction of the road, in failing to maintain it in a safe driving condition and to keep it in proper repair, and in failing to warn plaintiff's husband of its dangerous condition. As a result of the defendants' negligence and the injuries to her husband the plaintiff has lost the sexual consortium, companionship, comfort, and earning power of her husband, to the plaintiff's damage in the sum of $95,000.00.

Washington adheres to the common law rule which denies to the wife a right of action for loss of consortium resulting from a negligent injury to her husband: Ash v. S. S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). In Oregon that right is conferred by statute: ORS 108.010. The question is whether the law of Oregon or that of Washington governs this case.

This court has heretofore been committed to the traditional choice-of-law rule that in tort cases the law of the place of wrong--Lex loci delicti--governs: Nadeau v. Power Plant Engr. Co., 216 Or. 12, 20, 337 P.2d 313 (1959). In Lilienthal v. Kaufman, 239 Or. 1, 395 [247 Or. 277] P.2d 543 (1964), however, we abandoned the mechanical application of the corresponding rule in contract cases--Lex loci contractus. We there said:

'There is no need to decide that our previous statements that the law of the place of contract governs were in error. Our purpose is to state that this portion or our decision is not founded upon that principle because of our doubt that it is correct if the Only connection of the state whose law would govern is that it was the place of making.' 239 Or. at 7, 395 P.2d at 545.

The reasons given in Lilienthal to support the foregoing statement lead to the conclusion that Lex loci delicti is no longer to be regarded as an article of faith in tort cases. There is not to say, of course, that the place of wrong has ceased to be a relevant circumstance; on the contrary, it may, in connection with other circumstances, be a decisive factor.

The cardinal virtue of the traditional rule was its certainty, ease of application, and predicability. Departure from that rule, where it has been departed from 1 --largely due to the labours and prolific writing of legal scholars--has left a difficult problem of formulating a rule to take its place. As Chief Judge Sobeloff observed in Lowe's North Wilkesboro Hdwre v. Fidelity Mut. Life Ins. Co., 319 F.2d 469, 473 (4th Cir. 1963):

'In failing to formulate the reasons forr applying the law of a foreign forum, the North Carolina court has not differed from other jurisdictions; and even in multi-state torts courts have with few exceptions merely chosen whatever rule seemed reasonable for the particular case under adjudication, without attempting to formulate the reasons for selecting that rule. Scholars and commentators have had little more success in providing guidelines for choosing the proper and just rule. Against every rule applied and every proposal made great clouds of criticism have been raised, and each commentator appears to have a different 'best' solution for the difficulty. The applicable rules for a conflicts law of torts have constantly changed in the ceaseless search for a just and fair resolution of the problem.'

And the opinion quotes, in a footnote, the following comment by one of the outstanding scholars in this field:

"Despite the keen insight and illuminating analyses offered by some scholars, that appears to be the net effect of the rather large amount of recent learned writing in the field. After reading the articles, one understands the problem a great deal better, but he is no nearer to the answer unless he has been converted to one or another of the controversial views set out in them.' Leflar 'Choice of Law: Torts: Current Trends,' 6 Vand.L.Rev. 447, 457 (1953).'

The attack upon the traditional rule has had its influence with The American Law Institute and has led to proposed modifications of its choice-of-law rules. See Lilienthal v. Kaufman, supra, 239 Or. at 7, 395 P.2d 543. Section 379 of Tentative Draft No. 9, April 24, 1964, Second Restatement, Conflict of Laws, reads:

'(1) The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort.

'(2) Important contacts that the forum will consider in determining the state of most significant relationship include:

'(a) the place where the injury occurred,

'(b) the place where the conduct occurred,

'(c) the domicil, nationality, place of incorporation and place of business of the parties, and

'(d) the place where the relationship, if any, between the parties is centered.

'(3) In determining the relative importance of the contacts, the forum will consider the issues, the character of the tort, and the relevant purposes of the tort rules of the interested states.'

Although the proposed rule of the Restatement has not met with a large measure of approval by the scholars, 2 it has been, to a greater or less extent, taken as a guide by a number of the courts. In some cases, however, courts have resorted to other theories in order to avoid what were deemed to be undesirable consequences flowing from application of Lex loci delicti. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), is a prime example. Plaintiff administrator sued to recover damages for the wrongful death of a passenger on an airplane which crashed in Massachusetts. The decedent was a domiciliary of New York, where the journey commenced. Under New York law (written into its Constitution) there is no limit on the recoverable damages in a death action. The Massachusetts wrongful death statute limited recovery to $15,000. A divided court held that the measure of damages was a procedural or remedial question controlled by the law of New York. Beyond that, the opinion pointed out that in such a case the place of injury is 'entirely fortuitous' and emphasized the policy aspects of the decision. The court said: 'For our courts to be limited by this damage ceiling (at least to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law'. 9 N.Y.2d at 40, 211 N.Y.S.2d at 136, 172 N.E.2d 528. 3

We proceed to a review of other decisions in this area rendered over the past quarter of a century.

Where the question was one of immunity from suit because of interfamily relationship, the domicile of the parties was accorded controlling significance in Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955), and Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (1959). The question was said to be not of tort law but of capacity to sue and be sued. Somewhat similarly, a question of survivorship in an action for wrongful death was held to be governed by the law of the forum, which was also the state of the domicile of the parties: Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953). 'Basically,' the court said, 'the question is one of the administration of decedents' estates, which is a purely local proceeding'. 41 Cal.2d at 866, 264 P.2d at 949.

Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957) involved a Minnesota statute which provided that if a person illegally sells intoxicating liquor to another, causing him to become intoxicated, the seller is liable for damages to one who is injured by the intoxicated person. The defendant sold liquor illegally in Minnesota and the plaintiff was injured in Wisconsin when an automobile in which he was a passenger and which was driven by the intoxicated person turned over. Wisconsin had no law similar to the Minnesota statute. All parties...

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