Garrett v. Reno Oil Co.

• Decision Date: 24 September 1954
• Docket Number: No. 15547,15547
• Citation: 271 S.W.2d 764
• Parties: Walter Edwin GARRETT et ux., Appellants, v. RENO OIL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 764

271 S.W.2d 764

Walter Edwin GARRETT et ux., Appellants, v. RENO OIL COMPANY et al., Appellees.

No. 15547.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 24, 1954.

Rehearing Denied Oct. 22, 1954.

Carter, Gallagher, Roberts, Jones & Magee, and Ben T. Warder, Jr., Dallas, for appellants.

Nelson, Montgomery, Robertson & Sellers, and Allan D. Montgomery, Wichita Falls, for appellees.

MASSEY, Chief Justice.

Walter Edwin Garrett was injured within the State of Texas while action within the scope and course of this employment by the Reno Oil Company, which employer had in force and effect a policy of Workmen's Compensation Insurance. The compensation insurer made a settlement with Garrett on a lump sum basis, based upon an acknowledgment that the employee was totally and permanently disabled. Subsequently, Dorothy Garrett, wife of the injured employee, prosecuted, or had prosecuted for her by her husband, a suit for damages against the employer on account of the 'loss of consortium' sustained by her incident to her husband's injuries and disabilities. The defendant employer moved for a summary judgment in the trial court, and summary judgment was entered in its behalf, from which the Garretts have appealed.

Judgment affirmed.

The question actually posed upon this appeal is whether Texas should or should not follow the decision of the United States Court of Appeals, District of Columbia Circuit, in the case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, certiorari denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624. In that case Henry Hitaffer had been an employee who was injured in the scope and course of his employment by an employer coming within the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. The compensation insurer had settled the claim for compensation made by the injured employees. Lucia Hitaffer, Henry's wife, subsequently filed a suit sounding in tort against the Argonne Company, Henry's employer, alleging that Henry had sustained his injuries through the employer's negligence, and that such injuries were of such character and severity that in consequence she was deprived of Henry's aid, assistance, and enjoyment, specifically sexual relations. The action was prosecuted to recover her damages because of the loss of such consortium. The employer filed its motion for summary judgment, and the trial court granted the motion and entered judgment for the employer. Lucia appealed, and the Circuit Court held that she was entitled to maintain her complaint in law for the very material and consequential loss sustained by her, and remanded the case to the trial court for a disposition upon the merits.

In the opinion of the court in the Hitaffer v. Argonne Co. case (87 U.S.App.D.C. 57, 183 F.2d 812) it was frankly acknowledged that its decision was a departure from the principles of law theretofore adhered to, in the following language: 'Although this is the first time this question has been presented to this court, we are not unaware of the unanimity of authority elsewhere denying the wife recovery under these circumstances. As a matter of fact we have found only one case in which the action was allowed, and that authority has since been effectively overruled. * * *'

Prior to 1950, the unanimous common-law rule referred to in the quoted language from the Hitaffer opinion was succinctly set forth by the Restatement of the Law of Torts, Volume III, p. 496, sec. 695, as follows:

'Action by Wife for Harm Caused by Tort Against Husband.

'A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests of for any expense incurred in providing medical treatment for her husband.

'Comment:

'a. Although a husband is entitled to recover for the loss of his wife's services and society and any expense which he incurs as a result of illness or bodily harm caused to her by the tortious conduct of another, a wife is not entitled to a recovery under similar circumstances. The wife is not, nor has she ever been entitled to the services of her husband. Moreover, she is not deprived of the support to which she is entitled by any tort committed against him. The husband is still legally bound to provide support for her, and the tortfeasor is liable to the husband for any loss of earning power which he may suffer. This the husband himself may recover, and were his wife permitted to recover for the loss of support, a double recovery would result. The wife has a similar interest in the society and sexual relations with her husband as he has in such relations with her. However, the law has not recognized her right to recover against one who has caused harm to such interests by conduct which is not intended to harm them. One who has negligently injured the husband, or has intentionally caused him harm, by conduct directed toward him personally rather than toward the wife's interest, is not liable to the wife.'

Instances in which this rule has been adhered to since 1950, despite the decision in the Hitaffer v. Argonne Co. case, include: Florida: Ripley v. Ewell, Fla.1952, 61 So.2d 420; New Jersey: Danek v. Hommer, 1952, 9 N.J. 56, 87 A.2d 5; Larocca v. American Chain & Cable Co., 1952, 23 N.J.Super. 195, 92 A.2d 811, and State v. Volpicelli, 12 N.J. 617, 97 A.2d 680; New York: Passalacqua v. Draper, 1951, 279 App.Div. 660, 107 N.Y.S.2d 812; Lurie v. Mammone, New York County, 1951, 200 Misc. 320, 107 N.Y.S.2d 182; Kentucky: La Eace v. Cincinnati, Newport & Covington Ry. Co., Ky.1952, 249 S.W.2d 534; Oklahoma: Nelson v. A. M. Lockett & Co., 1952, 206 Okl. 334, 243 P.2d 719; Wisconsin: Guse v. A. O. Smith Corp., 1952, 260 Wis. 403, 51 N.W.2d 24; Arizona: Jeune v. Del E. Webb Const. Co., 1954, 77 Ariz. 226, 269 P.2d 723; Washington: Ash v. S. S. Mullen, Inc., 1953, 43 Wash.2d 345, 261 P.2d 118; United States: (re injuries in Arkansas) Werthan Bag Corp. v. Agnew, 6 Cir., 1953, 202 F.2d 119.

It is also worthy of note that the Circuit Court of the District of Columbia, which decided the Hitaffer case in 1950, has subsequently pointed out that the case has no application where the law of the state in which the injury occurred does not recognize such a right of action by the wife. O'Neil v. United States, 1951, 92 U.S.App.D.C. 96, 202 F.2d 366. In this case, although the parties lived in the District of Columbia, the injury had occurred in Maryland, which does not recognize such a cause of action by the wife. For this reason the Hitaffer decision was held to have no applicability.

Several of the courts have expressed the opinion in the cases cited that if there should be any change made of the commonlaw rule that a wife has no right to maintain action for damages for loss of consortium through negligent tort, the change should be made by the legislatures rather than the courts, in view of the fact that the common-law rule is so universal and of such long standing.

But in the opinion of the single appellate court we have been able to find which affirms the principle declared by the District of Columbia Circuit Court in the Hitaffer case, to-wit, Brown v. Georgia-Tennessee Coaches, 1953, 88 Ga.App. 519, 77 S.E.2d 24, 32, we note the following language: '* * * we do indeed have a 'charge to keep,' but that charge is not to perpetuate error or to allow our reasoning or conscience to decay or to turn deaf ears to new light and new life. * * *'

We are in accord with the broad principle of justice motivating the Georgia court in the quoted statement in the case of Brown v. Georgia-Tennessee Coaches, supra, but in view of...