Lunow v. Fairchance Lumber Company

• Decision Date: 09 February 1968
• Docket Number: No. 9400.,9400.
• Citation: 389 F.2d 212
• Parties: Reba LUNOW, Appellant, v. FAIRCHANCE LUMBER COMPANY, a corporation, Rockwell-Standard Corporation, a corporation, United States Fidelity and Guaranty Company, a corporation, Allen & Hoshall, a co-partnership, Composed of Lorin B. Allen and Robert H. Hoshall, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

389 F.2d 212 (1968)

Reba LUNOW, Appellant, v. FAIRCHANCE LUMBER COMPANY, a corporation, Rockwell-Standard Corporation, a corporation, United States Fidelity and Guaranty Company, a corporation, Allen & Hoshall, a co-partnership, Composed of Lorin B. Allen and Robert H. Hoshall, Appellees.

No. 9400.

United States Court of Appeals Tenth Circuit.

February 9, 1968.

Leslie L. Conner, Oklahoma City, Okl. (James M. Little and Leslie L. Conner, Jr., Oklahoma City, Okl., with him on brief), for appellant.

Jerome E. Hemry, Oklahoma City, Okl., for appellee Rockwell-Standard Corp.

Clayton B. Pierce, Oklahoma City, Okl. (Lynn J. Bullis with him on the brief), for appellee Allen & Hoshall.

Edgar Fenton, Oklahoma City, Okl. (Elliott C. Fenton, Oklahoma City, Okl., with him on the brief), for appellees Fairchance Lumber Co. and United States Fidelity and Guaranty Co.

Before MURRAH, Chief Judge, BROWN^* and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

This appellant-wife asserts a right of action against each and all of the appellees for loss of consortium by reason of negligent harm to her husband while in the course of his employment in Oklahoma. The injuries and resulting disability are compensable under the Oklahoma Workmen's Compensation Act. The husband, William Henry Lunow, is being duly paid and his employer is not involved in this action. The action is against appellees as third party tort feasors.

It seems to be conceded that in harmony with general law Oklahoma gives a common law right of action for loss of consortium in favor of a husband but withholds it from the wife. See Howard v. Verdigris Valley Electric Co-Op., 201 Okl. 504, 207 P.2d 784; and see also Criqui v. Blaw-Knox Corporation, et al., 10 Cir., 318 F.2d 811; Anno. 23 A.L.R.2d 1378; Restatement of Torts § 695. This discrimination is said to work a deprivation of equal protection of the laws and a denial of due process of law and to compel a right of action in the wife equivalent to that of the husband in the same or similar circumstances. The motion to dismiss on stipulated facts is two-fold: (1) The Workmen's Compensation benefits provided and paid to the injured husband are exclusive and in place of all common law liability of all of the appellees. The husband does not, therefore, have a right of action in the same circumstances, hence no constitutional right is involved. (2) Oklahoma may, consistently with due process and equal protection of the laws, afford a husband a remedy for loss of consortium while denying it to the wife.

The trial court dismissed the action on the latter ground and did not reach the former. We think the first defense is foremost and decisive, for if a statutory interpretation obviates the necessity for deciding a constitutional issue, we are bound to pursue that course. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 91 L.Ed. 128, and cases cited. And, if, as we think, the judgment of the court can be sustained by statutory interpretation, it should be affirmed even though the trial judge chose the constitutional ground for his decision. And see Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610; Texaco, Inc., v. Holsinger, 10 Cir., 336 F.2d 230.

The pertinent facts are that appellee Rockwell-Standard Corporation, a manufacturer of airplanes in Oklahoma County, Oklahoma, contracted with appellee Fairchance Lumber Company to construct an addition to its plant building according to plans and specifications prepared by appellee Allen & Hoshall. The contract required Fairchance to secure and maintain Workmen's Compensation for its employees, and Fairchance secured such insurance covering workmen on the construction job from appellee United States Fidelity and Guaranty Company. Fairchance subcontracted a part of its contract to the Western Steel Erection Company and required Western Steel to provide Workmen's Compensation to its employees. The husband was injured in the course of his employment with Western Steel and, as we have seen, is now being paid Workmen's Compensation.

Section 11 of the Oklahoma Workmen's Compensation Law expressly provides that an independent contractor shall be liable for Workmen's Compensation due to his direct employees or the employees of any subcontractor. And, the principal employer is also liable in a manner specified for compensation due all direct employees, employees of an independent contractor, subcontractor or other employees engaged in the principal employer's business. This same section also provides that any person entitled to compensation shall have the right to recover same directly from his immediate employer, the independent contractor or intermediate contractor. And, if the principal employer fails to require compliance with the law by his independent contractor, an employee may proceed against the principal employer without regard to liability of any independent, intermediate or other contractor. Section 12 of the Act provides that the liability prescribed in section 11 shall be "exclusive and in place of all other liability of the employer * * * at common law or otherwise for * * * injury,...