Cooney v. Moomaw, Civ. No. 400.
Decision Date | 15 January 1953 |
Docket Number | Civ. No. 400. |
Citation | 109 F. Supp. 448 |
Parties | COONEY v. MOOMAW et al. |
Court | U.S. District Court — District of Nebraska |
Bielski, Elliott & Lewis, Sioux Falls, S. D., and Crosby & Crosby, North Platte, Neb., for plaintiff.
Townsend & Youmans, Scottsbluff, Neb., and Mothersead, Wright & Simmons, Scottsbluff, Neb., for defendants.
Federal jurisdiction in this action is founded upon diversity of citizenship. 28 U.S.C.A. § 1332. Damages for loss of consortium resulting from a negligent injury to her husband are sought by a wife, plaintiff herein, against two defendants, one the owner and the other the operator of a truck involved in a collision with a vehicle operated by plaintiff's husband. Plaintiff's husband has been fully compensated for his injury. Cooney v. Moomaw,1 et al., Case No. 356, United States District Court, District of Nebraska, North Platte Division. Defendants have filed alternative motions requesting the court either to dismiss the action or to grant a summary judgment in their favor on the ground that the complaint fails to state a claim upon which relief can be granted. It is with these motions that we are presently concerned.
The substantive law to be applied in this case is that of Nebraska. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. That law is to be ascertained by an examination of the relevant decisions of Nebraska courts insofar as they are available, and in the absence of instructive decisions, or "considered dicta" by Nebraska courts on the point in question, from any other materials persuasively indicating the course of decision within the state. Yoder v. Nu-Enamel Corp., 8 Cir., 1941, 117 F.2d 488; Mattson v. Central Electric & Gas Co., 8 Cir., 1949, 174 F.2d 215. An exhaustive examination of the reported Nebraska cases discloses that the Nebraska courts have not been called upon to decide the precise question involved in this case. So, of necessity, we turn to analogous materials from within the state and to pertinent decisions from without.
Nebraska has adopted the Common Law of England to the extent that it is applicable and not inconsistent with the Constitution of the United States or with the organic laws, or legislative acts of the state. R.R.S.1943, § 49-101. However, this adoption of the Common Law in general terms does "not admit of an unqualified application of all its rules without regard to local circumstances and the then present enlightened conception of reason and justice, for the common law is applicable only in so far as it is suited to the genius, spirit, and objects of its intendments affecting the society of the state." State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 444, 20 N.W.2d 232, 234.
At Common Law a wife had no cause of action for loss of consortium of the husband because she could not sue in her own name. 27 Am.Jur., Husband and Wife, § 513, p. 113. In Nebraska, as in many other jurisdictions, the Common Law disability of a wife to sue in her own behalf has been removed by statute. R.R.S.1943, § 25-305. And it is clear in this state that she may maintain an action in her own behalf for injuries resulting from a defendant's negligent acts. See City of Chadron v. Glover, 43 Neb. 732, 62 N.W. 62. However, the numerical majority of American jurisdictions have held that no new rights were created by the Married Women's Acts, such as the Nebraska Statute mentioned above, and that since the wife had no cause of action at Common Law for loss of her husband's consortium as a result of the defendant's negligence, she has none by virtue of the Married Women's Acts. Patelski v. Snyder, 179 Ill.App. 24; Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, error dismissed 254 U.S. 662, 41 S.Ct. 63, 65 L.Ed. 464; Cravens v. Louisville & N. R. Co., 195 Ky. 257, 242 S.W. 628; Nash v. Mobile & Ohio R. Co., 149 Miss. 823, 116 So. 100, 59 A.L.R. 676; Howard v. Verdigris Valley Electric Co-op., 201 Okl. 504, 207 P.2d 784. In 1950, the Court of Appeals for the District of Columbia refused to follow the majority rule. In Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 816, 23 A.L.R.2d 1366, Judge Clark points out:
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