Smith v. United Const. Workers, Dist. 50
| Decision Date | 14 July 1960 |
| Docket Number | 6 Div. 428 |
| Citation | 271 Ala. 42,122 So.2d 153 |
| Parties | Mrs. R. W. SMITH v. UNITED CONSTRUCTION WORKERS, DISTRICT 50, et al. |
| Court | Alabama Supreme Court |
Lokey & Bowden and Wilson, Branch & Barwick, Atlanta, Ga., and Hare, Wynn & Newell, Birmingham, for appellant.
Crampton Harris and London, Yancey, Clark & Allen, Birmingham, for appellees.
Appellant filed a complaint in two counts seeking damages for loss of consortium of her husband who is alleged to have been injured as a result of an assault and battery committed upon him by appellees. From a judgment sustaining demurrers to both counts of the complaint, plaintiff took a nonsuit and brings this appeal.
This case presents but one question: May the wife of a man injured by the tortious act of a third person maintain an action in Alabama for loss of consortium of her husband against the tort-feasor?
Appellant admits at the outset that no cause of action for loss of consortium of the husband existed in a wife at common law. She, however, asks this court to follow the small minority of courts which have seen fit to create such an action following the case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, decided by the United States Court of Appeals for the District of Columbia in 1950.
The argument is made that while the wife had no cause of action for loss of consortium of her husband at common law this was because at common law she was considered a chattel belonging to her husband. He could at common law maintain such an action for loss of consortium of his wife. Further, that since the statutes removing the disabilities of married women have been passed, making husbands and wives equal, it is illogical to disallow the cause of action to her and continue to allow it as to the husband. While there is some appeal in the argument and some merit to the contention that the law is inconsistent in this respect, the common law of England is in force in this state except as changed by statute. Title 1, § 3, Code of Alabama of 1940.
We are compelled to follow the common law on any subject when the same has not been changed by the legislative branch of our government. We are in complete agreement with the opinion of the Supreme Court of Florida in Ripley et al. v. Ewell, reported at 61 So.2d 420, 423, when confronted with the precise question before us:
'Should we reach the conclusion that husband and wife are now exactly equal in their respective rights, duties and responsibilities we would be confronted with the problem of determining whether the change from the common law has the effect of destroying the reason for allowing the husband to recover or destroying the reason for not allowing the wife to recover. At least one court has taken the first view. Marri v. Stamford Street Railroad Co., 84 Conn. 9, 78 A. 582, 33 L.R.A.,N.S., 1042.
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'We have given careful consideration to the able arguments advanced in the Hitaffer case, many of which are founded on sound reasoning and which logically support the conclusion reached if considered as an argument of what the law should be. They might well appeal to the Legislature. But we find them wholly unconvincing when viewed from the only angle from which our jurisdiction permits us to consider them, namely, a determination of what the law of Florida is. * * *
'However, the principal reason that prevents us following the Hitaffer...
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