Swartz v. U.S. Steel Corp.

• Decision Date: 05 December 1974
• Citation: 304 So.2d 881,293 Ala. 439
• Parties: Edna M. SWARTZ v. UNITED STATES STEEL CORPORATION, a corp. and American Bridge Co., a corporation. SC 859.
• Court: Alabama Supreme Court

Page 881

304 So.2d 881

293 Ala. 439

Edna M. SWARTZ v. UNITED STATES STEEL CORPORATION, a corp. and American Bridge Co., a corporation.

SC 859.

Supreme Court of Alabama.

Dec. 5, 1974.

Hare, Wynn, Newell & Newton, Corretti, Newsom, Rogers & May, Birmingham, for appellant.

Robert G. Tate and William F. Murray, Jr., Birmingham, for appellee.

HARWOOD, Justice.

In the proceedings below Mrs. Edna M. Swartz filed a suit against the United States Steel Corporation seeking damages for the loss of her husband's consortium because of injuries resulting proximately from the alleged negligence of the Steel Company.

The trial court, on motion of the Steel Company, dismissed the plaintiff's suit, as it was bound to do under the decision of this court in Smith v. United Construction Workers, 271 Ala. 42, 122 So.2d 153 (1960), wherein it was held that a wife has no cause of action under the common law of Alabama for the loss of her husband's consortium resulting from the tortious act of a third party. Smith v. United Construction Workers, supra, which will hereinafter be referred to as Smith.

The sole question involved in this appeal is whether the court should, under today's recognition of a married woman's status, continue to adhere to the doctrine enunciated in Smith, supra.

At common law a wife had no independent legal status of her own. In legal contemplation she existed largely as a non person. On this basis a wife was denied a cause of action for the loss of her husband's consortium. Despite change in a wife's status through the years, and the enactment of statutes conferring rights on married women, in some instances superior to those of her husband, the common law doctrine that a wife could not sue for the loss of her husband's consortium was continued in the decisions of this country. Realizing that the old common law basis for the rule had become unrealistic in the more modern social fabric, new reasons were assigned for its continuance. In this manner the old doctrine denying a wife's action for loss of her husband's consortium was retained as a vestigial appendage in the body jurisprudence. Analysis of the new reasons set forth for continuing the old doctrine indicates that they simply do not hold water. As usual in such situations, where the reason for the rule fails, the rule eventually falls.

In a landmark decision in 1950, the United States Circuit Court of Appeals for the District of Columbia, in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, after a thorough analysis of the existing doctrine that a wife had no cause of action for the loss of her husband's consortium, repudiated the same and held that such cause of action did exist.

In 1960 this court handed down its decision in Smith, supra. Although the court was asked to follow Hitaffer v. Argonne Co., supra, this request was disposed of by the observation that only a small minority of courts had seen fit to 'create' an action in favor of the wife for loss of her husband's consortium in the wake of Hitaffer, supra. The court observed.

'* * * While there is some appeal in the argument and some merit to the contention that the law is inconsistent in this respect, (denial of action for loss of consortium) the common law of England is in force in this state except as changed by statute. Title 1, Sec. 3, Code of Alabama 1940.'

Thereafter the court cites and largely relies as authority for its denial of a right in the wife to a cause of action for loss of her husband's consortium, the Florida case of Ripley et al v. Ewell (Fla.), 61 So.2d 420. The court states it is in complete agreement with Ripley, supra.

We wish to here note that the court's statement in Smith, supra, that 'the common law of England is in force in this state except as changed by statute. Title 1, Sec. 3, Code of Alabama 1940,' is overbroad, for in its full context Section 3 reads:

'The common law of England, So far as not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature.' (Emphasis ours.)

We also think it appropriate at this juncture to point out that in 1971, in Gates v. Foley (Fla.), 247 So.2d 40, the Supreme Court of Florida overruled Ripley v. Ewell, supra, the authority relied on in Smith, supra, observing:

'Since Hitaffer v. Argonne Company, Supra, a flood of authorities in other jurisdictions have overturned the common law rule and, on various grounds, allowed the wife to recover for loss of consortium.'

In support of this statement, the Florida court, in a footnote cites cases from Arkansas, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Wisconsin, and Washington, as well as numerous legal textbooks and articles favoring the position that the wife should have a cause of action for loss of her husband's consortium where such right is given to the husband. We have not, in the interest of brevity, set forth the many cases cited in this footnote from the various jurisdictions, and the legal literature on the subject, but refer those interested in such citations to footnotes 1 and 2 appearing on page 42 of the opinion in Gates v. Foley, supra. To this list may also be added the Massachusetts case of Diaz v. Eli Lilly & Co., Mass., 302 N.E.2d 555, and the California case of Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. The Massachusetts court not only overruled a number of their prior cases to the effect that neither spouse had a cause of action for loss of consortium, but held that such cause of action could be exercised by either the husband or the wife.

Counsel for appellee has strenuously argued that if the doctrine announced in our case of Smith, supra, be overruled, the result would be, (1) An ignoring of the provisions of Title 1, Section 3, Code of Alabama 1940, (2) A repudiation of the doctrine of stare decisis, (3) An invasion of legislative function by judicial decree, (4) Create the possibility of double recovery and destroy the finality of settlements already made with the husband, (5) Create an extension of causes of actions to all who may suffer a loss of a loved one, and (6) Cause insuperable difficulties in the assessment of damages if a wife be allowed an action for the loss of the consortium of her husband.

We shall discuss these contentions seriatim.

1. That to permit the wife a cause of action for the loss of the consortium of her husband would be to ignore the provisions of Title 1, Section 3, of our Code.

The common law is decisional law. It is not frozen into unchangeable tablets of stone. In 1835, Justice Story in his work 'Miscellaneous Writings,' at page 307, wrote:

'The common law is gradually changing its old channels and wearing new.'

In Hurtado v. California (1884), 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, the United States Supreme Court wrote:

'This flexibility and capacity for growth and adaption is the peculiar boast and excellence of the common law.'

This court has written in Harkness v. Sears & Walker, 26 Ala. 493:

'The common law of England (as has been well remarked by the Supreme Court of the United States) is not to be taken in all respects as to be that of America.'

In Woodmen of the World Life Ins. Soc v. Guyton, 239 Ala. 216, 194 So. 655, this court wrote:

'The common law is not static, but is constantly undergoing change, and extension, to meet the changing conditions, due to the ever expanding business and social fabric.'

Title 1, Section 3, aforementioned, we think clearly reflects this invitation to change and growth in the common law of Alabama. While this section provides that the common law of England shall be the rule of decisions, except as it may be altered or repealed by the legislature, it further provides such law shall apply so far as it is not inconsistent with the Constitution, laws, And institutions of this state, and the common law together with the laws and institutions shall be the rule of decisions.

We find no constitutional prohibitions denying a wife a cause of action for loss of her husband's consortium. In fact certain provisions of our Constitution would appear to invite the conclusion that such cause of action should be permitted.

Article 1, Section 1, provides:

'That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; * * *'

As early as 1871, this court held that the phrase 'all men are created equal' includes both sexes. O'Neal v. Robinson, 45 Ala. 526.

Article 1, Section 10, provides:

'That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.'

Article 1, Section 11, provides:

'That the right of trial by jury shall remain inviolate.'

Article 1, Section 13, provides:

'That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law.'

In Woodson v. Bailey, 210 Ala. 568, 98 So. 809, this court recognized that the right of consortium was a right mutual to both the husband and the wife, as evidenced by the following quotation from that opinion:

'In the early common law it was limited to the rights of the husband growing out of the marriage relation. In modern law it has come to denote the rights of either consort, and may be said to include those collective rights of either husband or wife resulting from and inherent in the marital union. These rights have been defined in this form of action to include the person, affection, society, and assistance. The terms 'service,' 'aid,' 'fellowship,'...