Seagraves v. Legg

• Citation: 127 S.E.2d 605,147 W.Va. 331
• Decision Date: 16 October 1962
• Docket Number: No. 12167,12167
• Parties: Pearl B. SEAGRAVES v. Ethel LEGG et al.
• Court: Supreme Court of West Virginia

Page 605

127 S.E.2d 605

147 W.Va. 331

Pearl B. SEAGRAVES v. Ethel LEGG et al.

No. 12167.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1962.

Decided Oct. 16, 1962.

Syllabus by the Court

1. A wife, whose husband is injured by the negligence of a tort-feasor, may not maintain an action for loss of consortium of her husband against such tort-feasor.

2. At common law a wife could not maintain an action for loss of consortium of her husband due to the negligence of a third party and no such right has been provided by any Act of the Legislature to change or alter the common law rule in this State.

3. The common law, if not repugnant of the Constitution of this State, continues as the law of this State unless it is altered or changed by the Legislature. Article VIII, Section 21 of the Constitution of West Virginia; Chapter 2, Article 1, Section 1, of the Code of West Virginia.

4. 'The common law is not to be construed as altered or changed by statute, unless legislative intent to do so be plainly manifested.' Shifflette v. Lilly, 130 W.Va. 297, 43 S.E.2d 289.

James E. Maroney, Cabin Creek, for appellant.

Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, R. K. Kelly, Charleston, for appellees.

BERRY, Judge.

This is a civil action instituted in the Circuit Court of Kanawha County by Pearl B. Seagraves, plaintiff, against Ethel Legg and Paula Campbell, an infant, defendants. The complaint alleges that on July 6, 1961, the defendant Ethel Legg was the owner of a motor vehicle which was operated by the defendant Paula Campbell when it was negligently driven into a motor vehicle operated by Willie C. Seagraves, the husband of the plaintiff Pearl B. Seagraves; that because of such negligence on the part of the defendants the husband of the plaintiff was injured, resulting in loss of consortium by the plaintiff of her husband, Willie C. Seagraves, and as a result thereof, the plaintiff demands damages in the amount of $5000.00.

The defendants filed a motion to dismiss this action on the ground that under the laws of the State of West Virginia a married woman does not have a cause of action for the loss of consortium of her husband. This motion was later amended by the defendants with the request to dismiss the motion on the ground that 'By virtue of the law of the State of West Virginia a married woman has no cause of action for the loss of the consortium of her husband caused by the negligence of a defendant or defendants.' The trial court sustained the amended motion of the defendants to dismiss, and entered a judgment dismissing the action on December 28, 1961, to which judgment an appeal was granted by this Court on March 26, 1962.

The only issue in this case is whether, under the laws of this State a married woman has a cause of action for the loss of consortium of her husband caused by the negligence of the defendants. This is a case of first impression in this State.

It has been held that in West Virginia, as well as in most of the other states, a wife can maintain an action for alienation of affection which in effect involves loss of consortium, as well as other elements of damages. Gross v. Gross, 70 W.Va. 317, 73 S.E. 961, 39 L.R.A.,N.S., 261; Kuhn v. Cooper, 141 W.Va. 33, 87 S.E.2d 531.

An action for alienation of affection is based on a direct and intentional wrong, and is entirely different from the question presented in the case at bar as to whether or not the wife has a cause of action for the loss of consortium of her husband resulting from negligence on the part of the defendants. Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889.

The weight of authority regarding the question presented in the instant case is that a wife cannot sue for the loss of consortium of her husband caused by negligence. This rule is clearly and succinctly contained in the lead statement pertaining thereto in 41 C.J.S. Husband and Wife, § 404, wherein it is stated: 'In the absence of statute, a wife has no cause of action for any loss sustained by her, including loss of consortium, in consequence of personal injuries inflicted on the husband.'

There are only about seven states that have held otherwise, and it would appear that these states do not have the same constitutional and statutory provisions as we have in this state.

The cases that have allowed the wife to recover for loss of consortium of her husband, based on the negligent act of the defendant, have been in relative confusion. The first American case we have found to allow such recovery is a North Carolina case, decided in 1921, Hipp v. E. I. Dupont De Nemours, 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873. However, four years later, it was in effet overruled by the case of Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889. It was indicated by the court in the Hinnant case that the Hipp case had confused the right of recovery in such cases based on direct and intentional wrong, such as alienation of affection or criminal conversation, with such loss of consortium caused by negligence. It was held that an action will lie and a recovery will be allowed where such action is based on intentional wrong, but not where it is based on negligence. Hinnant v. Tide Water Power Co., supra.

The next case holding that a wife can recover for negligent loss of consortium of her husband, which was decided without any authority therefor in 1950, is the case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, cer. den. 71 S.Ct. 80, 340 U.S. 852, 95 L.Ed. 624. However, this case also involved a Federal Workmen's Compensation Act, and the same Court, about seven years later, in the case of Smither and Company, Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220, held that an action for loss of consortium was excluded by the District of Columbia Compensation Act, which ruling was followed by the Fifth Circuit Court of Appeals in 1960 in the case of Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42. These later rulings were based on the ground that the Federal Compensation Act (Longshoremen's and Harbor Workers' Compensation Act) provided an exclusive remedy in such cases. The decisions in these cases are based on a Federal Statute, and cannot be considered as authority one way or another with regard to a wife having a cause of action at common law for the loss of consortium of her husband where loss was the result of a third party's negligence.

The case of Cooney v. Moomaw, 109 F.Supp. 448, decided by a Federal District Court of Nebraska, held that the Courts of Nebraska had not ruled on this matter, but that the wife could recover for the negligent loss of consortium of her husband because that is what the law ought to be in that State. However, the Circuit Court of Appeals for the Eighth Circuit, in the case of Luther v. Maple, 250 F.2d 916, decided in 1958, stated that inasmuch as the State of Nebraska had not ruled on the matter, it did not know what the law in Nebraska was in connection therewith. The last case decided by the Federal Court dealing with this question in the State of Nebraska is the case of Guyton v. Solomon Dehydrating Co., 8 cir., 302 F.2d 283, decided in 1962, in which it was held that a wife had a cause of action for the negligent loss of consortium of her husband in the State of Nebraska on appeal dealing with said matter from a District Court, on the ground that the District Judge in 1962 should not overrule the preceding District Judge's ruling on this matter.

The California case of Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003, cited by the plaintiff in her brief as authority for a wife to recover for the loss of consortium of her husband, was an action by both the husband and the wife against a doctor for malpractice, and did not turn on the principle involved in the case at bar. However, the opinion indicated that either spouse had the right to recover for loss of companionship and affection of the other. But when the question involved in the case at bar squarely arose in the State of California, in the case of Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664, 328 P.2d 449, it was held that a wife had no cause of action and could not recover for the negligent loss of consortium of her husband.

In Arkansas, Delaware, Illinois, Iowa, Michigan, Pennsylvania and South Dakota, the Courts have indicated that the wife has a cause of action for negligent loss of consortium of her husband, apparently as a result of their Married Women's Act giving the wife the right to sue in her own right and for the reason that any rule to the contrary was judge made and could be changed by judges.

Georgia has apparently been uncertain regarding its position on this question. In the case of McDade v. West, 80 Ga.App. 481, 56 S.E.2d 299, the Court of Appeals of Georgia was equally divided on the question as to whether or not the wife had the right to sue...