Sharp v. Producers Produce Co.

• Decision Date: 04 February 1932
• Docket Number: No. 5080.,5080.
• Citation: 47 S.W.2d 242
• Parties: MARION SHARP, APPELLANT, v. PRODUCERS PRODUCE COMPANY, RESPONDENT.
• Court: Missouri Court of Appeals

47 S.W.2d 242

MARION SHARP, APPELLANT, v. PRODUCERS PRODUCE COMPANY, RESPONDENT.

No. 5080.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Appeal from Greene County Circuit Court. — Hon. Warren L. White, Judge.

AFFIRMED.

Neale, Newman & Turner and Sizer, Gardner & Lockmiller for appellants.

(1) The Workmen's Compensation Law, section 13672a2 provides that the rights and remedies granted therein to an employee exclude all other rights and remedies of the employee, her husband, etc., at common law or otherwise, except such rights and remedies as are not provided for by this act. This exception evinces the legislative intent to substitute something in return for all rights and remedies excluded; otherwise such rights and remedies still exist. King v. Vicoloid Oil Co., 106 N.W. 988; Novak v. Montgomery-Ward, 198 N.W. 294; Allen v. Trester, 199 N.W. 841; Donnelly v. Minneapolis Mfg. Co., 201 N.W. 305; Silurian Oil Co. v. White, 252 S.W. 569; Roxanna Petroleum Co. v. Cope, 269 Pac. 1084. (2) The husband at common law has a cause of action for loss of services, companionship, society, medical bills, etc., incurred as a result of injuries to the wife. (3) Courts do not look with favor upon repeals by implication. It must appear by express words or necessary implication that it was the intention of the Legislature to destroy a right or remedy long existing at common law. Sharon v. Anahan Realty Co., 123 Atl. 192; Milan v. Stile, 202 N.W. 70; King v. Viclioid Oil Co., 106 N.E. 988.

Allen & Allen, Mosman, Rogers & Buzard and Louis W. Wolf for respondents.

(1) Section 3 of the Workmen's Compensation Law of Missouri expressly abrogates the common law right of the husband to sue the employer for loss of services and consortium of his wife when the wife is injured in a compensable case; first, by releasing the employer from all other liability therefor whatsoever, whether to the employee or any other person, and second, by providing that the rights and remedies granted to the employee shall exclude all other rights and remedies of such employee and her husband at common law or otherwise. Section 3, Workmen's Compensation Act, Laws of 1927, p. 492; McKenzie v. Missouri Stables (1930), 34 S.W. (2d) (Mo. App.) 136; Kemper v. Gluck, 21 S.W. (2d) 922, judgment of Circuit Court affirmed in 39 S.W. (2d) (Mo.) 330 (1927); Swan v. F.W. Woolworth Company, 222 N.Y.S. 111, 129 Misc. Rep. 500; McVey v. Chesapeake & P. Teleph. Co. (1927), 103 W. Va. 519, 138 S.E. 97; Treat v. Los Angeles Gas & Electric Corp. (1927), 82 Cal. App. 610, 256 Pac. 447; Hilsinger v. Zimmerman Steel Company (1922), 193 Iowa, 708, 187 N.W. 493; Adkins v. Hope Engineering & Supply Co., 81 W. Va. 449, 94 S.E. 506; Wall v. Studebaker Corporation (1922), 219 Mich. 434, 189 N.W. 58; McLain v. Llewellyn Iron Works Co., 56 Cal. App. 60, 204 Pac. 869; Buonfiglio v. Neuman & Company, 93 N.J. Law 174, 107 Atl. 285; Span v. Jackson-Walker Coal Company (1929), 322 Mo. 158, 16 S.W. (2d) 190; Clingan v. Carthage Ice & Cold Storage Co. (1930), 25 S.W. (2d) (Mo. App.) 1084.

BAILEY, J.

Plaintiff brought a common law action for damages for loss of services, companionship, etc., of his wife, Fay Sharp, resulting from injuries sustained by her while employed in defendant's packing plant at Springfield, Missouri. Plaintiff's wife, as employee, received compensation from defendant, as employer, under the provisions of the Workmen's Compensation Law of Missouri.

The petition charged the injury to plaintiff's wife resulted from defendant's negligence and that her injuries have permanently incapacitated her, for which plaintiff prayed damages. The answer set up among other things, that the Workmen's Compensation Act fully governed and controlled the rights of all the parties; that defendant fully discharged its obligation to the said Fay Sharp, in accordance with said are and has been fully and finally released from all and every kind of compensation because of the injury to the said Fay Sharp and that plaintiff's rights in the premises were fully and finally satisfied by reason of the payment of compensation to her.

The trial court sustained defendant's motion for judgment on the pleadings and plaintiff has appealed.

The sole question on this appeal is whether or not the husband's common law right to recover damages for loss of the services and consortium of his wife, resulting from defendant's negligence, is lost by reason of her having received compensation under the Workmen's Compensation Law of this State. It must be conceded that unless the compensation act has taken away the husband's common law rights in that particular, the husband would be entitled to maintain this action. The leading case on that general subject is King v. Vicoloid, 106 N.E. Mass. 968. That was a suit in which the parent sued for loss of services of a minor son, an employee who had received compensation under the Massachusetts Workmen's Compensation Act. Under the provisions of the Massachusetts' Act, the employee waived his right of action for damages, but no right of the parent was mentioned in the act. The court, in passing upon the right of a parent to sue, uses this language: "In our statute there is no direct enactment taking away the parents' right of action, and we find nothing which takes it away by implication. The Legislature simply have not covered the case as in Parsons v. Merrill, 5 Mets 356. If they had chosen not to leave the parents' right of action unaffected, they might have taken it away altogether: they might have made some stated division of the allowed compensation between the minor employee and his parent: they might have provided (like the Rhode Island Leg, that the election between the statutory remedy and that given by the common law should be made by the parent of a minor employee and should bind both parent and child. But we have no right to conjecture what the Legislature would have enacted if they had forester the occurrence of a case like this: much less can we read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose." [l.c. 989.]

The King case has been followed in Allen v. Trester, 199 N.W. 841; Silurian Oil Co. v. White, 252 S.W. (Tex.) 569; Roxanna Petroleum Co. v. Cope. 269 Pac. 1084. These cases all involve the right of a parent to sue for loss of services of a minor son but the principle involved is we think, analogous to the right of the husband to recover for loss of the services and consortium of his wife. In none of these cases, however, was there a statute similar to our own particular statute. The section relevant reads, in part as follows:

"If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death except such rights and remedies as are not provided for by this chapter." [Sec. 3301, R.S. 1929.]

The first sentence of the foregoing statute has been referred to in the briefs as the "release clause:" the first portion of the second sentence as the "exclusion clause:" and the last clause of the second sentence as the "exception clause." For convenience we have adopted the same nomenclature.

It is virtually conceded by plaintiff that, if the Legislature had said no more than is contained in the release clause, all persons, including a husband would have been foreclosed as to any common law right or remedy by virtue of the provisions of the act. The language is clear and unambiguous and the release clause certainly could have no other meaning. The act then proceeds with the so-called exclusion clause which obviously is not inconsistent with the preceding release clause although more specific. By its terms it excludes any right or remedy that might have been available to the employee her husband as well as other persons arising out of the common law or otherwise on account of the accidental injury or death of the employee. Certainly if the Legislature had stopped there the husband's common law right to recover for loss of services and consortium of his wife would have been lost. But the statute continues. "except such rights and remedies as are not provided for by this act." This exception clause is relied upon by plaintiff as saving his common law rights as a husband, for the reason, it is argued, that the husband's rights to recover for loss of services and consortium of his wife is "not provided for" by the Workmen's Compensation Act. The whole case then hinges upon the proper construction to be given this exception clause.

In construing a statute the legislative intent must be kept in mind, if it may be ascertained and the whole act, or such portions thereof as are in pari materia, should be construed together. [Keeney v. McVoy, 206 Mo. 42, 103 S.W. 946.] Since the title to an act is essentially a part of the act and is itself a legislative expression of the general scope of the bill, it may be looked to as an aid in...