Mattison v. Kirk

Citation497 So.2d 120
PartiesDorothy L. MATTISON and Gary Mattison, as Co-administrators of the Estate of Woodrow W. Mattison, deceased v. Charles KIRK, et al. Charles KIRK, et al. v. Dorothy L. MATTISON. 85-125, 85-329 and 85-325.
Decision Date03 October 1986
CourtSupreme Court of Alabama

C. Delaine Mountain and Vickie E. House, Tuscaloosa, for appellants/cross-appellees.

Alan T. Rogers and James A. Bradford of Balch & Bingham, Birmingham, for appellees/cross-appellants.

JONES, Justice.

These consolidated appeals and cross-appeals present four issues: 1) Whether a claim for loss of consortium can be based on a common law marriage; 2) whether a pending action, claiming loss of consortium, survives the death of the injured spouse; 3) whether a worker's personal representative can maintain a wrongful death action against the co-employees of the deceased; and 4) whether, because of this Court's holding in Slagle v. Parker, 370 So.2d 947 (Ala.1979), a tort action against co-employees for personal injuries survives if death results from those injuries while the action is pending. We answer issues 1, 2, and 4, yes. We answer issue 3, no.

On July 22, 1982, Woodrow Mattison, an Alabama Power Company "troubleman," was investigating a power outage when he suffered an electrical shock and was rendered comatose. On May 19, 1983, Mattison, through his guardians Dorothy L. Mattison and Gary Mattison, filed a personal injury action pursuant to Code 1975, § 25-5-11, against co-employees Charles Kirk, Gerold Gast, J.C. Brazil, Carl V. Turner, R.B. Hicks, and Ed Graves, and certain other non-co-employee third parties. 1 A loss of consortium claim by Dorothy L. Mattison was included in the complaint. Woodrow Mattison died on August 12, 1985, never having regained consciousness. Maximum weekly workmen's compensation benefits were paid by the employer from the time of Mattison's injury to the date of his death; but no death benefits were paid, because his death occurred more than three years after his injury. Code 1975, § 25-5-60.

Co-employees filed a motion for summary judgment on September 10, 1985, on all claims in the action. The trial court granted summary judgment in favor of the co- employees on Mattison's personal injury claim, but reserved ruling on the consortium claim.

On October 28, 1985, Dorothy Mattison and Gary Mattison moved the trial court to allow them to be substituted as plaintiffs in the capacity of co-administrators of the estate of Woodrow W. Mattison, deceased; and, further, they amended the complaint to add wrongful death claims against all Defendants. The trial court allowed the substitution but granted the co-employees' motion to dismiss the amendment on the ground that a wrongful death claim could not lie against co-employees. Plaintiffs, following A.R.Civ.P. 54(b) orders of finality, appealed both summary judgments in favor of the co-employees.

On December 3, 1985, co-employees filed a supplemental motion for summary judgment on the loss of consortium claim. The motion was denied, and co-employees requested permission to cross-appeal. On December 21, 1985, the trial court found that a common law marriage had existed between Woodrow and Dorothy Mattison. On January 7, 1986, this Court granted co-employees' request to cross-appeal (Rule 5, A.R.A.P.), and all three cases were consolidated.

Issue No. 1

First, we will address the question whether a ceremonial marriage is a prerequisite to a loss of consortium claim. Common law marriages are valid in Alabama (Campbell v. Gullatt, 43 Ala. 57 (1869); Beggs v. State, 55 Ala. 108 (1876)), and are co-equal with ceremonial marriages, Piel v. Brown, 361 So.2d 90 (Ala.1978). In Henley v. Rockett, 243 Ala. 172, 8 So.2d 852 (1942), this Court recognized marriage as "contractual, a covenant relation, resulting in the marital union in which each spouse has the unquestioned right to all the fealties on the part of each other, known as consortium." 243 Ala. at 174, 8 So.2d at 853. Both husband and wife have mutual and special rights and interests growing out of the marriage relationship. Consequently, each spouse has a cause of action for loss of consortium caused by the tortious act of a third party. Swartz v. United States Steel Corp., 293 Ala. 439, 446, 304 So.2d 881, 887 (1974).

Because common law marriages are valid in Alabama, entitling the wife of such a marriage to all the interests and rights of a wife of a ceremonial marriage, it follows that a ceremonial marriage is not a prerequisite to maintaining an action for loss of consortium. A common law marriage will support a consortium claim.

Co-employees' contention that the trial court had insufficient evidence to find a common law marriage between Dorothy and Woodrow Mattison is without merit. The requisites of a common law marriage are: capacity; present agreement or consent to be husband and wife; and public recognition of the existence of the marriage and cohabitation or mutual assumption openly of marital duties and obligations. Etheridge v. Yeager, 465 So.2d 378 (Ala.1985). No ceremony or particular words are necessary. Etheridge, supra; Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978). Here, there is no dispute as to the capacity of the deceased and Dorothy to enter a valid marriage. Proof of the agreement to marry may be inferred from the circumstances, i.e., from cohabitation and reputation. Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166 (1944).

The record is replete with evidence to support the trial court's finding of Dorothy's and Woodrow's common law marriage. They lived together as husband and wife beginning in July of 1974 and held themselves out as husband and wife from that time on. Dorothy took Woodrow's name as her own. Indeed, she promptly changed her name on her driver's license, Social Security card, and voter registration. The two opened joint charge and savings accounts, and filed joint tax returns. Additionally, Dorothy is listed as Woodrow's wife with the Veterans' Administration with regard to Woodrow's disability check.

Co-employees place great weight on the fact that Dorothy and Woodrow planned a ceremonial marriage at some future date, arguing that since the Mattisons planned such a ceremony, no valid marriage existed. Co-employees rely on Kirkland v. Brantley, 380 So.2d 290 (Ala.1980), and Gilchrist v. State, 466 So.2d 988 (Ala.Crim.App.1984), cert. quashed, 466 So.2d 991 (Ala.1985). In these two cases, however, the parties were merely cohabitating with an intent to marry in the future. The couples in Kirkland and Gilchrist manifested no present intent to be married, as Dorothy and Woodrow did. Additionally, the intent to participate in a marriage ceremony in the future does not prove a couple's nonmarriage. Skipworth, 360 So.2d at 977. It is not uncommon even for ceremonially married couples to have a second marriage ceremony--a sort of celebration and renewal of marriage vows. In sum, we find evidence to sustain the trial court's finding of a common law marriage.

Issue No. 2

Next, we address the issue whether a claim for loss of consortium survives the death of the injured spouse. Co-employees assert that Mrs. Mattison's loss of consortium claim cannot be maintained after the death of her husband.

Relying on Baird v. Spradlin, 409 So.2d 820 (Ala.1982), co-employees seek to distinguish this case from Price v. Southern Ry. Co., 470 So.2d 1125 (Ala.1985) (holding that a wife's loss of consortium claim survived her husband's death), by pointing out that the Price decision did not involve an employee suffering an on-the-job injury that later resulted in death. They argue that the claim for loss of consortium should be viewed as co-extensive with, or derivative of, the injured spouse's cause of action, so that in the absence of that spouse's actionable claim the consortium claim could not be maintained. Alternatively, co-employees suggest that Slagle v. Parker, 370 So.2d 947 (Ala.1979), creates an exception to the ruling in the Price decision.

Co-employees' analysis fails on two counts. First, the wife's right of consortium is her separate right. Although her loss derives out of her husband's injury, her claim is independent of his. "[The wife's] separate action for loss of consortium is not an action for the same cause against the same defendant." Price v. Southern Ry., 470 So.2d at 1130 (Ala.1985) (emphasis in original). It is distinct from the husband's personal injury or wrongful death claim and does not abate upon the death of the husband, Price, supra. See, also, Swartz v. United States Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974).

The wife's right of recovery depends only upon a showing of liability on the part of third-party Defendants. To make her case, she simply must prove that her husband's injury was caused by Defendant's wrongful acts and that, as a result, she lost her husband's consortium from the time of the injury until his death. The fact that there may be some impediment to bringing a wrongful death or personal injury action on his behalf does not mean there is any impediment to her bringing her loss of consortium claim. Thus, it is irrelevant that a claim on his behalf, whether for wrongful death or personal injury, may fail under the provisions of the Workmen's Compensation Act.

Second, co-employees' reliance on §§ 25-5-11 and 25-5-53 is misplaced. The essence of co-employees' argument is that the grant of immunity for wrongful death provided in these two Code sections, the legality of which was upheld in Slagle, also provides immunity with respect to Mrs. Mattison's loss of consortium claim. The validity of the legislature's attempt to include the dependent widow within the embrace of the immunity provisions of the Workmens' Compensation Act must be tested against the nature of the widow's claim. If the claim asserted is a common law claim, the holding in Grantham v. Denke, 359 So.2d 785 (Ala.1978), is applicable. (Grantham held...

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