Druley v. Houdesheldt

• Decision Date: 21 February 1956
• Docket Number: No. 2694,2694
• Citation: 75 Wyo. 155,294 P.2d 351
• Parties: Arthur O. DRULEY, Plaintiff and Appellant, v. Francis W. HOUDESHELDT and Salt Creek Freightways, a Corporation, Defendants and Respondents.
• Court: Wyoming Supreme Court

Page 351

294 P.2d 351

75 Wyo. 155

Arthur O. DRULEY, Plaintiff and Appellant, v. Francis W. HOUDESHELDT and Salt Creek Freightways, a Corporation, Defendants and Respondents.

No. 2694.

Supreme Court of Wyoming.

Feb. 21, 1956.

Rehearing Denied April 24, 1956.

See 296 P.2d 251.

Clarence G. Cypreansen, R. N. Ogden, Casper, for appellant.

Edward E. Murane, R. R. Bostwick, Casper, for respondents.

PARKER, Justice.

On December 2, 1950, Hazel Elizabeth Druley, the wife of plaintiff, was a pay passenger on a Salt Creek Freightways bus driven by Francis W. Houdesheldt in Natrona County, Wyoming. The bus upset on icy roads; Mrs. Druley suffered injuries which resulted in her immediate death; and plaintiff filed this action against the bus company and the driver for damages caused to him by loss of consortium resulting from his wife's death. After an intermediate motion to plaintiff's petition had been sustained, an amended petition was filed, a demurrer was interposed by defendants, and sustained by the court. Plaintiff elected to stand on his amended petition and has appealed the adverse judgment to this court. As is emphasized by plaintiff, this is not an action for a death of a human being but an action for damages to a living human because of the loss of consortium.

The case presents a single basic question, namely: Under Wyoming law, can a husband recover for loss of consortium arising from the wife's death by wrongful act? In order to show that such recovery is proper plaintiff in his brief and argument raises three points:

(1) 'The common law applies in Wyoming in the absence of Statutory provision.'

(2) 'The Wyoming Statutory provisions concerning actions for wrongful death which survive have been repealed' by § 72-102, W.C.S.1945.

(3) 'At common law a husband can maintain an action for an injury to, or death of the wife for the loss of consortium.'

The first point, that 'the common law applies in Wyoming in the absence of Statutory provision,' need not be discussed, since it is conceded by defendants' counsel and has long been considered by this court to be axiomatic.

The second point, that 'the Wyoming Statutory provisions concerning actions for wrongful death which survive have been repealed,' seems to depend upon the interpretation of the last sentence of § 72-102, W.C.S.1945, one of the initial sections of the law providing for workmen's compensation. The sentence in issue reads as follows:

'* * * Sections 3526, 4291 and 4292 (§§ 57-427, 3-403 and 3-404), and all laws or parts of laws relating to damages for injuries or death from injuries or in anywise in conflict with this Act are hereby repealed, as to the employments, employers and employees coming within the terms of this act.'

Plaintiff points out that there is a substantial difference between an 'amendment,' which is a change or alteration, and a 'repeal,' which is an abrogation or destruction of a former law. He refers to a number of cases tending to support this view, concluding with the following statement:

'We cite the foregoing authorities because the language of the repealing statute, after absolute repeal of the stated statutes, contains 'as to the employments, employers and employees coming within the terms of this Act.' Certainly as to such the offending conflicting statutes were repealed. But repealed for one purpose only, they are repealed for all purposes--are dead, are nullities; they should not be printed in the compilations of the statutes. * * *'

Plaintiff cites many cases as authority for his statement that repeal 'is the abrogation or destruction of a law.' We can agree generally with the plaintiff's definition, but our agreement must be subject to the inevitable exception that naked definitions seldom fit factual situations. In the 'repeal' under consideration, there was no bald statement of such fact, but rather a conditioning of any 'repeal' by the use of modifying phrases. None of the cases cited by plaintiff deals with a statute in which the legislature conditioned a repealing statute with words such as those in § 72-102, W.C.S.1945 ('* * * in anywise in conflict with this Act are hereby repealed, as to the employments, employers and employees coming within the terms of this act.' Emphasis supplied.) Accordingly, plaintiff's cases on this subject, relating to situations other than the one in issue, are not helpful.

Initially, we must not lose sight of the fundamental rule of statutory construction that a statute is not open to construction as a matter of course. Where the language of a statute is plain, unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation; and the court has no right to look for or impose another meaning. See 50 Am.Jur., Statutes § 225; Rasmussen v. Baker, 7 Wyo. 117, 50 P. 819, 38 L.R.A. 773; Board of Com'rs v. Blakely, 20 Wyo. 259, 123 P. 72; Gale v. School District No. 4, 49 Wyo. 384, 54 P.2d 811; Texas Co. v. Siefried, 60 Wyo. 142, 147 P.2d 837, 150 P.2d 99; Wallis v. Bosler, 70 Wyo. 129, 246 P.2d 711; State ex rel. Fawcett v. Board of County Com'rs, 73 Wyo. 69, 273 P.2d 188. This rule is applicable to statutes referring to repeal.

'* * * It has also been held that a statute which expressly repeals so much of an earlier statute as is inconsistent therewith evinces a clear legislative intent that the earlier statute shall stand in respect of its other provisions. * * *' 50 Am.Jur., Statutes § 518, n. 2 citing Hanrick v. Patrick, 119 U.S. 156, 7 S.Ct. 147, 30 L.Ed. 396.

The rule is stated in similar language in 82 C.J.S., Statutes § 282, nn. 14 and 15 referring also to 59 C.J., Statutes § 502, nn. 49 and 50:

'* * * Even words of absolute repeal may be qualified by the intention manifested in other parts of the same act; and, according to some authorities, an express declaration that a particular statute is repealed will not be given effect, where it is apparent that the legislature did not so intend * * *.'

The court in United States v. Minker, D.C.Md., 19 F.Supp. 409, 414, stated:

'* * * In construing repealing statutes, it has frequently been held that a literally express repeal of a statute will not prevail where the intention of the legislative body is satisfactorily shown to be to the contrary, and this can be so shown by reference to other parts of the same statute, to other acts in pari materia, passed before or after, or to other contemporaneous legislation not strictly in pari materia, and to relevant facts and circumstances existing at the time. * * *'

A statement to the same general effect is found in First National Bank v. Lee County Cotton Oil Co., Tex.Com.App., 274 S.W. 127, 129:

'In construing an act of the Legislature, the intention of the law making power must govern as discovered by the wording of the act itself, together with the purpose sought to be attained by the enactment of the law. If this intention is plainly evidenced according to these rules, then it is the duty of the court to uphold the intention and construe the law in accordance therewith. Inasmuch as the question of repeal is always one of relative intent, an express declaration that a particular statute is repealed will not be given effect, where it is apparent that the Legislature did not so intend.'

It is clear to us that the language of § 72-102, W.C.S.1945, is plain, unambiguous, and conveys a definite meaning. In passing this law, the legislature in nowise intended to interfere with or repeal any existing Wyoming statutes except those 'in conflict with this Act [Workmen's Compensation Law] * * * as to the employments, employers and employees coming within the terms of this act.' Accordingly, §§ 3-403 and 3-404, W.C.S.1945, insofar as they relate to this type of case, are unrepealed and valid.

We next proceed to plaintiff's third point dealing with damage for loss of consortium, and find it desirable to review his pleading and the nature of his action. Plaintiff's amended petition states that Francis W. Houdesheldt, Salt Creek Freightways' agent, drove the bus carelessly and negligently, causing it to turn over, and that as a direct result of such negligence, Hazel Elizabeth Druley suffered fatal injuries. His action is in tort, and he relies on the common law rather than on 'wrongful death' statutes. We notice initially that his statement, 'at common law a husband can maintain an action for an injury to, or death of the wife for the loss of consortium' is equivocal in that it relates to two entirely different situations, (a) an injury to the wife, and (b) the death of the wife. Authorities applicable to one such situation will be of no assistance in resolving the other. Accordingly, we have reviewed with care the cases cited by plaintiff on this point in an...