Nemo Foundations, Inc. v. New River Co.

• Decision Date: 15 June 1971
• Docket Number: No. 12969,12969
• Court: West Virginia Supreme Court
• Parties: NEMO FOUNDATIONS, INC., a West Virginia Corporation, v. The NEW RIVER COMPANY, a West Virginia Corporation, et al.

Page 687

181 S.E.2d 687

155 W.Va. 149

NEMO FOUNDATIONS, INC., a West Virginia Corporation, v. The NEW RIVER COMPANY, a West Virginia Corporation, et al.

No. 12969.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1971.

Decided June 15, 1971.

Syllabus by the Court

An employer may not maintain an action to recover damages from a tortfeasor for the loss of services of his employee when such action is based on the negligent injury of the employee by said tortfeasor.

Preiser, Greene, Hunt & Wilson, Donald R. Wilson, Charleston, for appellant.

Stanley Higgins, Jr., Fayetteville, Donald D. Hudson, Beckley, for appellees.

CAPLAN, President:

This is an appeal from a judgment of the Circuit Court of Raleigh County in a civil action wherein the plaintiff, Nemo Foundations, Incorporated, sought to recover damages from the defendants, The New River Company, Epperly Motor Freight, Inc., Eazor Express, Inc. and James Edward Arthur, for the alleged negligent injury of its employee, Claire Lauria. The defendants filed motions for judgment on the pleadings, basing said motions, among other grounds, on the premise that the complaint does not state a cause of action against said defendants upon which relief can be granted. The court sustained said motions and the action was dismissed with prejudice. It is from this action of the trial court that this appeal is prosecuted.

In its complaint the plaintiff alleged that Claire Lauria, one of its executive employees, sustained severe and permanent injuries as a result of the joint, several or concurrent negligent acts of the defendants. As a result thereof, asserts Nemo, it was deprived of the services of said employee and suffered monetary loss. Nemo demanded a judgment in the sum of one million dollars.

In the posture of this case, the precise manner in which Claire Lauria was injured is not pertinent. It is sufficient to note that the injury allegedly resulted from a collision between the automobile in which said employee was a passenger and a tractor trailer driven by James Edward Arthur and owned by Epperly Motor Freight, Inc. and Eazor Express, at or near an overhead structure, commonly designated a trestle, built and owned by The New River Company. There is no allegation in the complaint that said injuries were inflicted intentionally.

The issue on this appeal is whether an employer may maintain an action to recover damages from a tortfeasor for the loss of services of an employee negligently injured by said tortfeasor.

While under common law it has been held that a master may maintain an action for the wrongful injury of his servant, an historical analysis of this action reveals that its origin was based on status rather than any contractual relationship. In ancient days, for example, the feudal lord had a proprietary interest in his villein or servant. He owned such servant and any injury to him resulted in injury to the lord. In such a state of society it was natural to give a master a cause of action against one who injured his servant. For an excellent history of the development of this action see Inland Revenue Commissioners v. Hambrook, 2 Q.B. 641, 3 Week L.R. 643, 3 All Eng. 338, 57 A.L.R.2d 790.

In Inland, supra, the English Court of Appeals, after relating the historical application of this action, concluded that this sort of action should not be extended, but should be confined today, as it was in the eighteenth century, to the realm of domestic relations where a member of the master's household is injured. Thus, it clearly appears that the English courts, where this action became a part of the early common law, have now limited its application so as to exclude the normal present day employer-employee relationship.

The American courts, while certainly not unanimous, appear to be in substantial agreement with the later English decisions. A number of courts have expressed disapproval of such action indicating a belief that it should either be discarded entirely or at least not extended. See annotation 57 A.L.R.2d 802 et seq.; 53 Am.Jur.2d, Master and Servant, Section 402; 57 C.J.S. Master and Servant § 622.

Denying relief to an employer who sued for damages for the negligent injury of his employee, the court in Crab Orchard Improvement Co. v. Chesapeake and O. Ry. Co., 115 F.2d 277 (4th Cir.), said that such recovery may be had only when the injury to the employee is intentionally calculated to harm the employer in his contractual obligations. In that case, as in the instant one, the claim was based on negligence. As to liability in such case the court said: 'Appellant (Employer) proceeds upon the final theory that appellee breached a legal duty owed by appellant, and that this breach is actionale. This theory predicates appellee's liability to the appellant on the ordinary principle of tort-liability-- that appellee's negligence was the proximate cause, in a chain of causation, resulting in damage to the appellant. The courts, however, have quite uniformly treated such damages as too remote and too indirect to support a recovery. * * * No legal duty is here owed by the tortfeasor to the employer. In is only where an injury is intentionally calculated to harm the employer in his contractual obligations that recovery may be had. * * * Where a husband is lallowed to cover for loss sustained by injuries to his wife, or a father for loss of service or expense in the cure of his child, the tort-feasor is held responsible, not because of the contractual aspect of the relationship, but because of the special treatment given by the common law to the particular social status involved. As to these, the tort-feasor is held responsible because he is expected to recognize the natural and probable consequences of his wrong. * * * However, no such special treatment is given by our law to the relationship of employer and employee. And, until the legislature deems to wise to...