Fields v. Synthetic Ropes, Inc.

• Citation: 215 A.2d 427,59 Del. 135
• Court: United States State Supreme Court of Delaware
• Decision Date: 30 November 1965
• Parties: , 59 Del. 135 Marylou C. FIELDS, Plaintiff Below, Appellant, v. SYNTHETIC ROPES, INC., a corporation of the State of Delaware, Defendant Below, Appellee.

Page 427

215 A.2d 427

9 Storey 135, 59 Del. 135

Marylou C. FIELDS, Plaintiff Below, Appellant, v. SYNTHETIC ROPES, INC., a corporation of the State of

Delaware, Defendant Below, Appellee.

Supreme Court of Delaware.

Nov. 30, 1965.

Appeal from the Superior Court in and for New Castle County.

Harold Leshem, Wilmington, and Sheldon L. Albert and James E. Beasley, Philadelphia, Pa., for appellant.

Roger Sanders, Prickett & Prickett, Wilmington, for appellee.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is an appeal in a personal injury action from the entry of summary judgment for the defendant.

For the purposes of this appeal, we accept as the facts that the plaintiff's husband is the president, an employee and one of five stockholders of the defendant corporation; that at the time of the accident he was operating an automobile owned by the defendant corporation within the scope of his employment; that his wife, the plaintiff, was riding with him in the company-owned automobile; that the reason for the plaintiff's presence in the automobile was to assist her husband in making preparations for an impending selling trip for the benefit of the defendant; that the plaintiff was to receive no compensation for her assistance; and that, finally, the plaintiff was injured by reason of her husband's negligent operation of the company automobile.

We make the foregoing fact assumptions because they are the aspect of the alleged facts most favorable to the plaintiff who has had summary judgment entered against her. It remains to be seen whether or not they would be established at a trial on the merits.

The plaintiff's action is against the employer corporation. Defendant moved for summary judgment upon the ground of the common law immunity of one spouse from suit by the other, and by reason of the Delaware Guest Statute preventing recovery of a guest in an automobile for injuries resulting from the ordinary negligence of the driver. The Superior Court granted the defendant's motion by reason of the doctrine of inter-spousal immunity. It specifically did not pass upon the defense of the Delaware Guest Statute.

In Delaware one spuse may not sue the other in an action at law. Plotkin v. Plotkin, 2 W.W.Harr. 455, 125 A. 455. In this case the court refused to extend various statutes of this State removing certain common law disabilities of married women so as to remove the common law immunity to one spouse from suit brought by the other. The rule of the Plotkin case has been reaffirmed many times by Delaware courts, most recently by this court's decision in Saunders v. Hill, 202 A.2d 807.

It is therefore quite apparent that this plaintiff may not maintain an action against her husband to recover damages for her injuries caused by his negligence. The parties to this cause are agreed upon this, but the defendant says that the plaintiff-wife seeks to do indirectly what she may not do directly by imputing her husband's negligence to his employer as the basis for her action.

In support of the argument of indirection defendant cites Lutz v. Boltz, 9 Terry 197, 100 A.2d 647, and Ferguson v. Davis, 9 Terry 299, 102 A.2d 707. We think, however, that these cases do not support the argument.

The Lutz case denied the right to a defendant to file a counter-calim for contribution under the Contribution Among Tortfeasors Act (10 Del.C., Ch. 63) against the driver of a vehicle in which the plaintiffs were riding as guests. It was clear that by reason of the Delaware Guest Statute (21 Del.C., § 6101) the plaintiffs could not have recovered damages from the driver of the car in which they were riding. The Superior Court held that Tortfeasor Contribution Statute had no application unless there was a 'common liability' to the plaintiffs between the defendant and the proposed contributor. Since the plaintiffs could not hold the proposed contributor liable, it followed there was no 'common liability' between him and the defendant and, thus, the statute had no application. To the same effect is Ferguson v. Davis, supra, decided on the authority of the Lutz case.

These two cases both were decided on the basis that a party not directly liable to a plaintiff may not indirectly be held liable through the means of enforced contribution to the defendant. Thus, in the Lutz case the proposed contributor could not be held liable to the plaintiffs by reason of the Guest Statute, and in the Ferguson case the proposed contributor could not be held liable to the plaintiff because she was his wife.

The Joint Tortfeasor Contribution Statute comes into play only when the proposed contributor shares with the defendant a 'common liability' to the plaintiff. Absent such liability, no contribution may be enforced. The question in the two cases rests squarely upon the statutory requirement that the right to force contribution depends directly upon the existence of liability of the proposed contributor to the plaintiff. We think they do not relate to the question before us.

But, says the defendant, to permit suit against the employer will, in fact, be to permit an indirect suit against the husband by reason of the fact that in the event of a recovery against it for its employee's tort the employer may recover over against the employee, thus indirectly forcing the husband to pay his wife's claim for damages. This does not follow, however, because the employer's right of recovery over against the employee is based, not upon the original claim based upon the employee's negligence, but upon the failure of the employee to live up to his independent duty of care owed for the protection of the employer's interest. 3 Prosser on Torts, § 116, p. 890; 2 Restatement of Agency 2nd, § 401.

We have before us the more basic question of whether or not the negligence of a husband-employee may be imputed to his employer as the basis for an independent action brought by the employee's wife against the employer, alone. Or, stated differently, does the wife under the circumstances before us have any cause of action which can be asserted against anyone? The question is of first impression in this State.

In other jurisdictions a split of authority has developed upon the question. Those jurisdictions which allow recovery by a wife in situations such as this are illustrated by the leading case of Schubert v. August Schubert Wagon Company, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293. This is the view of a majority of the States. Those jurisdictions which deny recovery in such situations are illustrated by Riegger v. Bruton Brewing Company, 178 Md. 518, 16 A.2d 99, 131 A.L.R. 307.

The rationale of the Schubert case is that, despite the common law immunity of a husband from suit brought by his wife, the husband's trespass upon the person of the wife is an unlawful act, though the husband may not be held liable for it. The husband's immunity from suit, however, is not carried forward to his employer. This results from the fact that injury to another has been caused by the negligence of the employee in the course of his employment. The holding rests squarely upon the doctrine of respondeat superior. The Schubert case, therefore, places the liability of the employer upon the concept of the culpability of the employee and not upon his personal liability. The employer is held liable, not because his employee is also liable, but because in the course of his employment presumably in his employer's interest, the employee, by his tortious conduct has caused injury to another. Under this view, it is immaterial that the husband-employee is immune from liability.

The rationale of the Riegger case, however, is that the immunity of the husband from suit brought by his wife is extended to the husband's employer in a suit brought against him by his employee's wife. Basically, the difference in this view from that expressed in the Schubert case is that the doctrine of respondeat superior has as its true basis the question of liability rather than culpability of the employee for his tortious act. In other words, if the employee may be held liable, the employer is liable and, conversely, if the employee may not be held liable, the employer may not be held liable.

We will not review the various other decisions since their divergent views are fairly represented by the referred-to decisions. The difference in the two lines of decision, we think, springs from a fundamental disagreement upon the doctrine of respondeat superior; one view being that the doctrine rests upon the culpability of the employee; the second being that the doctrine rests upon the liability of the employee.

Defendant argues that the rationale of prior Delaware decisions should lead us to follow the line of decisions which grant the employer of a husband immunity from suit by the wife for injuries caused the wife by the husband's negligent performance of his employment, if the husband, himself, is immune from such a suit. Basically, we think, the defendant's point is that under no circumstances can a husband commit a tort upon the person of his wife.

Thus, defendant says, Plotkin v. Plotkin, supra, granted the husband immunity from suit by his wife because at common law they were held to be one person and, thus presumably, could not commit a tort against each other. We do not so read the Plotkin case. That question was not before the court. The decision was not that no cause of action could be created as between...