Erwin v. Thomas
| Decision Date | 15 February 1973 |
| Citation | 506 P.2d 494,264 Or. 454 |
| Parties | Ruby D. ERWIN, Appellant, v. Wilbur E. THOMAS, and Shepler Refrigeration, Inc., Respondents. |
| Court | Oregon Supreme Court |
Chris P. Ledwidge, Portland, argued the cause for appellant. With him on the briefs were Ledwidge & Ledwidge, Portland.
Charles R. Holloway, III, Portland, argued the cause for respondents. With him on the brief were Tooze, Kerr & Peterson, Portland.
This is an action for damages for loss of consortium alleged to have been suffered when plaintiff's husband was injured in an accident. Plaintiff appealed from a judgment for defendant which was entered after a demurrer was sustained to plaintiff's complaint and plaintiff refused to plead further.
Defendant Thomas, while operating a truck in the state of Washington in the course of his employment for defendant Shepler, is alleged to have negligently injured plaintiff's husband. Defendant Thomas is an Oregon resident and his employer, defendant Shepler, is an Oregon corporation. Plaintiff and her injured husband are residents of Washington. Washington, by court decision, has followed the common law rule that no cause of action exists by a wife for loss of consortium. Ash v. S. S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). Oregon allows such an action, ORS 108.010.
The issue is whether Oregon law or Washington law is applicable. It is with some trepidation that a court enters the maze of choice of law in tort cases. No two authorities agree. 1 Until recently, this court was committed to the traditional, arbitrary, and much criticized rule that in tort cases the law of the place of the wrong, Lex loci delicti commissi, governs. However, in the case of Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), this court adopted the equally maligned and almost universally criticized 'most significant relationship' 2 approach of Restatement (Second) Conflict of Laws.
However, before engaging in the mysteries of the solution of an actual conflict, we must make certain that we have a conflict of consequence which requires a choice. All authorities agree that there is such a thing as a false conflict which requires no choice. However, typically, there is no agreement on what constitutes a false conflict. Professors Cavers, 3 Currie, 4 and Sedler, 5 together with Mr. Justice Traynor, 6 appear to urge that the policy or governmental interest behind the law of each state be examined and that a false or avoidable conflict be considered present if no substantial conflict is found to exist between the states' policies or interests in the particular factual context in which the question arises. 7 On the other hand, Professors Leflar, 8 Rosenberg, 9 and Ehrenzweig 10 see a false conflict as being limited to a situation where the laws of two states are the same or would produce the same results. Where the laws of two states are not the same or would not produce the same results if applied, these latter authorities see the search for and the comparison of the interests of the two states as a means (not necessarily the best or only means) of deciding an actual conflict, not as a means of determining whether a conflict exists. 11
Where, in the particular factual context, the interests and policies of one state are involved and those of the other are not (or, if they are, they are involved in only a minor way), reason would seem to dictate that the law of the state whose policies and interests are vitally involved should apply; or, if those of neither state are vitally involved, that the law of the forum should apply. It may well be that determining what interests or policies are behind the law of a particular state is far from an exact science and is something about which there can be legitimate disagreement; but, on the other hand, it is the kind of an exercise, for better or for worse, which courts do every day and, therefore, feel secure in doing. If such a claimed conflict can be so disposed of, whether it is called false or not, the disposition certainly seems preferable to wandering off into the jungle with a compass which everyone but its maker says is defective.
Let us examine the interests involved in the present case. Washington has decided that the rights of a married woman whose husband is injured are not sufficiently important to cause the negligent defendant who is responsible for the injury to pay the wife for her loss. It has weighed the matter in favor of protection of defendants. 12 No Washington defendant is going to have to respond for damages in the present case, since the defendant is an Oregonian. Washington has little concern whether other states require non-Washingtonians to respond to such claims. Washington policy cannot be offended if the court of another state affords rights to a Washington woman which Washington does not afford, so long as a Washington defendant is not required to respond. The state of Washington appears to have no material or urgent policy or interest which would be offended by applying Oregon law.
On the other hand, what is Oregon's interest? Oregon, obviously, is protective of the rights of married women and believes that they should be allowed to recover for negligently inflicted loss of consortium. However, it is stretching the imagination more than a trifle to conceive that the Oregon Legislature was concerned about the rights of all the nonresident married women in the nation whose husbands would be injured outside of the state of Oregon. Even if Oregon were so concerned, it would offend no substantial Washington interest.
It is apparent, therefore, that neither state has a vital interest in the outcome of this litigation and there can be no conceivable material conflict of policies or interests if an Oregon court does what comes naturally and applies Oregon law. 13 Professor Currie expresses it thusly:
'* * * The closest approximation to the renvoi problem that will be encountered under the suggested method is the case in which neither state has an interest in the application of its law and policy; in that event, the forum would apply its own law simply on the ground that that is the more convenient disposition * * *.' B. Currie, Notes on Methods aand Objectives in the Conflict of Laws, Selected Essays on the Conflict of Laws 184 (Footnote omitted) (1963).
An examination of the writings of those scholars who believe that an actual controversy exists in a situation similar to the present indicates, without an exception, they would reach the same result as we do, by either different or partially different reasoning.
The next question is whether our decision in Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), is incompatible with our disposition of the present case. In Casey, which adopted and applied Restatement (Second) Conflict of Laws, an actual conflict existed. An Oregon wife brought a loss of consortium action because of an injury to her husband, also an Oregon resident, which was negligently inflicted in Washington by a Washington resident. We there held that Washington defendants should not be required to accommodate themselves to the law of the state of residence of any traveler whom they might injure in Washington; that under the given circumstances, Washington's interest in the matter, which was protective of Washington defendants, was paramount to Oregon's interest in having its resident recover for her loss; and that Washington's relationship was the more significant and Washington law applied.
Our confidence in any set body of rules as an all-encompassing and readily applicable means of solution to conflict cases is not so great that we desire to undertake the application of such rules except in those situations where the policies and interests of the respective states are in substantial opposition. We see no such conflict here and, therefore, find it unnecessary to resort to any such set of rules. We are little concerned whether we are presented with a false conflict or with an actual conflict capable of solution by resorting to our analysis of the interests and policies of the respective states. Where such policies and interests can be identified with a fair degree of assurance and there appears to be no substantial conflict, we do not believe it is necessary to have recourse in the 'contacts' of Section 145(2) of Restatement (Second) Conflict of Laws.
The judgment of the trial court is reversed and the case is remanded for further proceedings.
This vehicle accident occurred in the state of Washington. The defendant Shepler, the truck driver, is an Oregon resident and his employer, Shepler Refrigeration, Inc., is an Oregon corporation. Plaintiff and her injured husband are residents of the state of Washington.
The plaintiff brought this action in Oregon to recover damages for loss of consortium. As stated in the majority opinion, Washington, by common law decision, denies the wife a right of action for loss of consortium for injury to her husband. Ash v. S. S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). Oregon, by statute, allows such an action. ORS 108.010. This statute establishes that all Oregon wives have the same civil rights as Oregon husbands, including the 'right of action for loss of consortium of her husband.' I fail to see how the Oregon Legislature can do as much for Washinton wives.
Regardless of whether we follow the Restatement (see Note 2 of the majority opinion) or the law of the place of the wrong, I do not believe we can or should bestow Oregon statutory rights for women on women of the state of Washington.
In Berghammer v. Smith, 185 N.W.2d 226, 231, 232 (Iowa 1971), the same problem arose in an action for loss of consortium. The accident occurred in Iowa and the plaintiff resided in Minnesota, which state, at the time, denied ...
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