Folk v. York-Shipley, Inc.

• Decision Date: 09 February 1968
• Docket Number: YORK-SHIPLE,INC
• Citation: 239 A.2d 236
• Parties: Donna G. FOLK, Plaintiff Below, Appellant, v., a Delaware corporation, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 236

239 A.2d 236

Donna G. FOLK, Plaintiff Below, Appellant, v. YORK-SHIPLEY, INC., a Delaware corporation, Defendant Below, Appellee.

Supreme Court of Delaware.

Feb. 9, 1968.

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

H. James Conaway, Jr. and Arthur Inden of Young, Conaway, Stargatt & Taylor, Wilmington, for appellant.

Roger P. Sanders and Richard W. Pell of Prickett, Ward, Burt & Sanders, Wilmington, for appellee.

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

WOLCOTT, Chief Justice.

This is an appeal from the grant of partial summary judgment against Donna G. Folk, a plaintiff with her husband, Robert P. Folk, in an action in the Superior Court against York-Shipley, Inc., a Delaware corporation. The complaint asserts two separate causes of action, that of Mrs. Folk for loss of her husband's consortium, and that of Mr. Folk for personal injury. ^*

The basic facts are that a head-on collision took place in Pennsylvania between a tractor-trailer driven by Mr. Folk and a tractor-trailer owned by York-Shipley and driven by its employee. Mr. Folk suffered serious injury. Mr. and Mrs. Folk are domiciled in Delaware, and York-Shipley is a Delaware corporation.

The parties agree that by reason of Friday v. Smoot, Del., 211 A.2d 594, a decision of this Court, the accident having taken place in Pennsylvania, the substantive law of Pennsylvania applies and governs the tort. The parties also are agreed that the substantive law of Pennsylvania, by reason of Newberg v. Bobowicz, 401 Pa. 146, 162 A.2d 662, denies a wife the right to sue for loss of consortium.

Mrs. Folk makes three alternate arguments in support of her contention that her claim for loss of consortium may be asserted in an action in the Superior Court of Delaware.

First, it is argued that her cause of action for loss of consortium is separate and distinct from her husband's action for personal injury. It is argued that her claim is for injury to her marriage relationship and, since her marriage domicile is in Delaware, that injury took place in Delaware and not in Pennsylvania.

Secondly, it is argued that loss of consortium is so intimately associated with the family relationship that it involves a matter of family law to which the law of the marriage domicile should be applied.

Thirdly, it is argued that if the law of Pennsylvania governs as to whether or not she has a cause of action, then all the law of Pennsylvania, including its rule as to conflicts of law, should govern. Since Pennsylvania in its conflicts law applies the 'most significant contact' rule, Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796, it would apply Delaware law since Delaware is the place with the most significant contacts. This argument seeks to have us apply the doctrine of renvoi.

We consider the several arguments in the order set forth.

The first argument is based fundamentally upon the assumption that an action by a wife for loss of consortium is permitted in Delaware. The assumption is bottomed upon Yonner v. Adams, 3 Storey 229, 167 A.2d 717. We point out that the Yonner case is a decision of the Superior Court which was not reviewed by this Court. It is true that in Stenta v. Leblang, Del., 185 A.2d 759, in a dictum we referred to the Yonner case as having upheld the right of action, but the point was not before us and we made no ruling either approving or disapproving the decision.

In the case at bar the point again is not before us, since the defendant, at least for the purposes of this appeal, apparently concedes the correctness of the Yonner rule. By reason of our conclusion with respect to the questions presented to us, we also will assume that in Delaware a wife has a right of action for loss of consortium. We point out, however, that the point should not be regarded as having finally been settled.

Mrs. Folk argues that the injury to her marriage took place in Delaware and that, accordingly, Delaware law should be applied. In Stenta v. Leblang, we said that a wife's action for loss of consortium 'is dependent upon the husband's right to maintain an action for personal injuries.' This means that while a wife's claim for loss of consortium may be separate and distinct from her husband's claim for personal injury, it is nevertheless nonexistent in the absence of a valid claim by the husband. In other words, the wife's injury (loss of consortium) springs into being simultaneously with the injury to the husband by reason of the tort committed upon him.

Analysis of the asserted right of action demonstrates that it is the personal injury to the husband which is also the injury to the marriage of which the wife complains. The argument of Mrs. Folk that the injury she complains of is the subsequent inability of her husband to perform part of his marital duties, and that therefore the injury took place in Delaware, fails to recognize the distinction between injury and damage.

In this case, the injury to the marriage was the injury to the husband in Pennsylvania. From this injury flowed the damage of which she complains. That this is necessarily so becomes apparent when we consider that York-Shipley, or its employee, committed no other allegedly negligent act to which the damage to the Folk marriage could be related. The alleged negligence of York-Shipley, which is the basis for Mrs. Folk's claim, took place in Pennsylvania. We are therefore dealing with a Pennsylvania tort.

The conclusion thus reached is supported by Annotation, 77 A.L.R.2d 1266, 1286; McVickers v. Chesapeake and Ohio Railway Company, D.C., 194 F.Supp. 848; Jordan v. States Marine Corporation of Delaware, 9 Cir., 257 F.2d 232; Igneri v. Cie de Transports Oceaniques, 2 Cir., 323 F.2d 257, and Sestito v. Knot, 7 Cir., 297 F.2d 33.

Since we are dealing with a Pennsylvania tort, under Friday v. Smoot, supra, that law governs....