Wright v. Standard Oil Company, Inc., 71-1534.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JOHN R. BROWN, , and INGRAHAM and RONEY, Circuit
• Citation: 470 F.2d 1280
• Parties: Mr. and Mrs. Albert N. WRIGHT, Mother and Father, respectively, of Douglas Wright, a minor, Plaintiffs-Appellants, v. STANDARD OIL COMPANY, INC., a Kentucky Corporation, et al., Defendants-Appellees.
• Docket Number: No. 71-1534.,71-1534.
• Decision Date: 06 February 1973

470 F.2d 1280 (1972)

Mr. and Mrs. Albert N. WRIGHT, Mother and Father, respectively, of Douglas Wright, a minor, Plaintiffs-Appellants,
v.
STANDARD OIL COMPANY, INC., a Kentucky Corporation, et al., Defendants-Appellees.

No. 71-1534.

United States Court of Appeals, Fifth Circuit.

December 12, 1972.

Rehearing and Rehearing Denied February 6, 1973.

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COPYRIGHT MATERIAL OMITTED

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Charles C. "Cliff" Finch, Batesville, Miss., Harold A. Katz, Chicago, Ill., for plaintiffs-appellants

Ralph Holland, Tupelo, Miss., Watkins & Eager, Elizabeth W. Grayson, William E. Suddath, Jr., Jackson, Miss., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 6, 1973.

INGRAHAM, Circuit Judge:

I.

On July 5, 1963, five year old Douglas Wright was visiting relatives near Tupelo, Mississippi, with his parents, Albert and Grace Wright. At approximately 9:35 A.M. Albert Wright took Douglas across U.S. Highway 45, which runs in front of the relative's home, to a small grocery store to buy some milk for the child's breakfast. Mr. Wright left Douglas at the store and recrossed the highway to help his brother polish a truck. A few minutes later Douglas attempted to recross the highway alone and was struck by a Standard Oil Company gasoline truck driven by Dennis Tutor. As a result of the accident the child's spinal cord was completely transected, and he was left a paraplegic.¹ Douglas has no feeling from his waist down, cannot use his legs, and has no control over his bladder and bowel functions. Extensive medical treatment has been required to maintain the boy's life functions, as well as, to bring him to a level at which he can participate in some normal activities. He has had thirteen different operations, has participated in a comprehensive rehabilitation program administered at a specialized institution and at home, and recently had a spinal fusion to correct an abnormal curving of the spine.² Douglas has made good progress however, and as he has grown older has been able to assume more responsibility for his own maintenance. He still requires daily nursing care, and since the accident his mother has been primarily responsible for the nursing services required by her son.³

This diversity suit was brought by Mr. and Mrs. Wright, citizens of Indiana, against Standard Oil Company, a Kentucky corporation, D. L. Collums, Standard's local agent for Tupelo, Mississippi, and Dennis Tutor, a Mississippi

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citizen and the driver of Standard's truck. The Wrights sought damages for the loss of their son's services and for past and future medical expenses arising from the accident. After a trial to the court, Tutor was found negligent because he failed to keep a proper lookout and could have avoided hitting the child if he had exercised ordinary care; his negligence was a proximate cause of the accident. Grace Wright was not found negligent, but her husband Albert Wright was contributorily negligent in giving his son an opportunity to cross the dangerous highway alone. The father's negligence was also a proximate cause of the accident. The Wrights were found to have suffered damages of $187,104.92. Included in this amount was $115,760 for the value of Mrs. Wright's past and future nursing services.⁴

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When the Mississippi Comparative Negligence Statute⁵ was applied, the court concluded that Mr. Wright's negligence had contributed two-thirds to the accident, while Tutor's negligence had contributed the other one-third. The damages were consequently reduced by two-thirds leaving a final award of $62,368.31 on which judgment was entered. Mr. and Mrs. Wright appeal from this judgment.

The trial court held that "Albert Wright is the sole owner of the parent's right of action for the consequential damages for the loss of Douglas' services during minority and expenses of his cure." Wright v. Standard Oil Co., 319 F.Supp. 1364, 1374 (N.D.Miss., 1970). On this basis all damages were reduced by the father's two-thirds comparative negligence. The appellants contend that the trial court erred in this holding and in reducing all damages. The issue is whether a wife, in the parents' action arising from an injury to their minor child, has a legally protected interest independent of her husband. This is a question of first impression in Mississippi, and we are Erie bound to decide it as would a Mississippi court. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Other issues concern the lower court's ruling on the application of the last clear chance doctrine, the decision that Mr. Wright was negligent, and the decision that Mr. Wright's negligence contributed two-thirds to the cause of the accident.

II.

Before we decide whether Mrs. Wright has an interest independent of her husband, we consider briefly the choice-of-law problem raised by this issue. Because the Wrights are domiciliaries of Indiana and have their marital domicile there, appellees advance the theory that whether Mrs. Wright has an interest apart from her husband in the parents' action should be determined by Indiana law rather than Mississippi law; they characterize the problem as one of status involving the husband-wife relationship, or perhaps they feel that the policies underlying Indiana law could be significantly advanced through its application to this issue. We agree with the trial court that a Mississippi court would apply Mississippi law to all the issues raised in this case.

A federal court sitting in a diversity case must apply the choice-of-law rules of the forum state. See Erie R. R. Co. v. Tompkins, supra; Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Alabama Great S. R. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir., 1972). The Mississippi Supreme Court has abandoned the strict place of the injury rule as the standard for choosing the applicable law in a muti-state tort case. Mitchell v. Craft, 211 So.2d 509 (Miss., 1968). The court adopted an approach based on § 145 of the Restatement (2nd) of Conflict of Laws and on the views of Professor Robert Leflar.⁶ 211 So.2d at 514-517.

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We have considered appellees' argument that Indiana law should be applied in the context approved by Mitchell v. Craft, supra. We have no doubt that a Mississippi court would decide that Mississippi has the most significant relationship to the parties and the occurrence and would, therefore, apply its own law to decide this issue. Mississippi is the place where the injuries occurred, the place where the conduct causing the injuries occurred, and either the domicile or the place of business of the appellees.

Although Indiana is the Wrights' marital domicile and has a statute regulating who may sue for injuries to a child,⁷ we do not believe a Mississippi court would apply this statute.

In Mitchell v. Craft the Mississippi Supreme Court stated that "an important consideration is the application of the better rule of law." 211 So.2d at 514. A Mississippi court would recognize that the Indiana statute may contravene the equal protection clause of the Fourteenth Amendment under the rationale of Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and in view of the possible constitutional difficulties, we feel a Mississippi court would opt for its own law. Especially is this true in the instant case where Indiana's only contact with the parties or the occurrence is that it is the appellants' domicile. In other situations this single contact might achieve greater significance; for example, if the Indiana statute was designed to promote harmony or prevent discord in the marital relationship, or to prevent collusive suits between spouses, then perhaps there would be an Indiana policy which would be advanced by applying its statute. However, applying this statute to our facts to determine whether Mrs. Wright has an interest in the parents' claim would not seem to advance the policy underlying the statute which is not to protect the marital relationship. See Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793 (Ind.1885); Thompson v. Town of Ft. Branch, 178 N.E. 440 (Ind.1831). While this statute may advance Indiana policies when Indiana is the forum, those policies would not be furthered by applying the statute in a Mississippi forum. For this reason, Mississippi would look solely to forum law. This brief analysis illustrates several grounds upon

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which to deny the application of Indiana law. When considered together, they confirm our conviction that a Mississippi court would apply forum law to determine whether Mrs. Wright has an interest in the parents' claim apart from her husband

Having concluded that Mississippi law should be applied, we move now to the resolution of the substantive issues.

III.

The district court reasoned that because a father has the primary obligation to support his minor child he is the sole owner of the parents' suit for consequential damages suffered as a result of the child's injury. In addition, the court treated Mrs. Wright's nursing services as a part of the husband's consortium, to which he is entitled because of the marital relation, and thus concluded that Mr. Wright was alone entitled to recover the reasonable value of Mrs. Wright's services. There is a two-step analysis present here. The father is the sole owner of the parents' right of action because he has the primary obligation of support; secondly, as the sole owner of the right, he is entitled to all the damages. Thus all damages must be reduced by his comparative negligence —a portion of the damages cannot be segregated and remain immune from the application of the comparative negligence standard. Our interpretation of Mississippi law, influenced by contemporary concepts concerning the rights of women, causes us to reject the conclusions reached by the court below...