Josephine Miskunas v. Union Carbide Corporation

399 F.2d 847

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 10, 1968
• Docket: 16482_1
• Status: Published

Opinions

CUMMINGS, Circuit Judge.

In this diversity action, plaintiff sued to recover for damages resulting from injuries suffered by her husband, Edward Miskunas, on July 14, 1966. He was in one of defendant’s buildings in Kokomo, Indiana, when a Model 2-0-20 Burton Mixer was being used to blend certain materials, resulting in an explosion that inflicted severe burns on Mis-kunas. As a result of his injuries, plaintiff was allegedly deprived of her husband’s “society, services, companionship and consortium” for which she sought $200,000 in compensatory damages and $1,000,000 in exemplary and punitive damages.

Relying upon three Indiana cases,¹ the District Court held that under Indiana law a wife has no cause of action for loss of her husband’s services, companionship or consortium. Therefore, the defendant’s motion to dismiss the complaint was granted.²

In Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E. 860, 863 (1933), the Supreme Court of Indiana stated that a husband cannot maintain a negligence action in that State for the loss of consortium unless connected with the loss of his wife’s service, for the real basis of recovery is for the loss of her service. Under a 1950 Virginia statute, the Fourth Circuit has held that apart from mental anguish, a negligently injured wife can only recover for the tangible items of damage sustained by her. Carey v. Foster, 345 F.2d 772 (4th Cir. 1965). Both cases recognize that a State may properly deny a spouse a recovery for intangible damages.

As recently as 1963, the Appellate Court of Indiana adhered to the rule that in that State a wife cannot sue a tort-feasor for loss of her husband’s consortium. Miller v. Sparks, supra, note 1. Apparently the last time the question was directly before the Supreme Court of Indiana was in 1952 in Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407. There it was decided that only the husband can sue for loss of consortial rights. Even though Judge Gilkison favored the rule that the consortium rights of each spouse are coextensive, a majority of the Supreme Court of Indiana refused to agree with his view. Twelve years later, the Indiana Supreme Court cited Miller v. Sparks, Burk v. Anderson and Brown v. Kistleman, supra, note 1, with approval, stating that “ ‘if the wife is permitted a separate recovery for her loss of consortium resulting from * * * injuries [to her husband], there is, in effect, a double recovery for the same matter’.” McDaniel v. McDaniel, 245 Ind. 551, 558, 201 N.E.2d 215, 218 (1964).

Two states in this circuit have adopted the rule that the wife should be permitted to sue for loss of consortium.³ Although this rule has much to commend it, we are bound by the unbroken line of Indiana authority to the contrary. Seymour v. Union News Co., 217 F.2d 168, 169 (7th Cir. 1954); Sestito v. Knop, 297 F.2d 33, 34 (7th Cir. 1961). In accordance with the views of some of the Commentators, numerous jurisdictions continue to deny recovery to a wife. See Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 260-261 (2d Cir. 1963), certiorari denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969. Therefore, we would not be warranted m speculating that the Indiana Supreme Court will allow a recovery by a wife for loss of consortium resulting from a negligent injury to her husband, when again presented with that question. Cf. Hulburt Oil & Grease Company v. Hulbert Oil & Grease Company, 371 F.2d 251, 254-255 (7th Cir. 1966), certiorari denied, 386 U.S. 1032, 87 S.Ct. 1482, 18 L.Ed.2d 594.

The plaintiff contends that the Indiana rule constitutes a violation of the Equal Protection clause of the Fourteenth Amendment to the Federal Constitution because it denies a wife a cause of action in a situation where a husband has one. This contention was successful in Owen v. Illinois Baking Corp., 260 F.Supp. 820 (W.D.Mich. 1966), and Karczewski v. Baltimore and Ohio Railroad Company, 274 F.Supp. 169 (N.D.Ill.1967), but unsuccessful in Lunow v. Fairchance Lumber Company, No. 66-122 Civil (W.D.Okla.1967), affirmed on other grounds, 389 F.2d 212 (10th Cir. 1968).⁴ The Equal Protection clause does not ordinarily prevent a state from making a classification dependent upon one’s sex. Gruenwald v. Gardner, 390 F.2d 591 (2nd Cir. 1968). As Justice Frankfurter stated in upholding a Michigan law prohibiting women (with certain exceptions) from bartending:

“The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, * * *. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.” Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163.

Under the Equal Protection clause, a discriminatory rule of state law “will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393.

Because a husband can recover for lost earnings, Indiana could reasonably conclude that it would be undesirable to give the wife an action that might permit double recovery. Since 87.8% of married men are employed and only 34.-4% of wives are employed,⁵ Indiana could justifiably discriminate in this respect between the spouses. Indiana could infer that more often in a wife’s suit than a husband’s, the jury would award her duplicating damages for some of the same elements of injury. See Restatement of Torts, Section 695, Comment a. Allowing the husband to recover for the lost household services of the wife would not engender double recovery, for the wife cannot recover for those unpaid services. (If employed and injured, she can of course recover for her lost earnings.) As Judge Friendly pointed out in the Igneri case, op. cit. 323 F.2d at p. 264, “it is doubted that the trial court’s instructions and its own power, combined with that of the appellate Court * * * to review verdicts for exces-siveness would suffice to remove the danger of double recovery.” In criticizing the granting of a consortium action to the wife, Chief Justice Schaefer stated as follows in his dissenting opinion in Dini v. Naiditch, 20 Ill.2d 406, 435, 170 N.E.2d 881 (1960):

“When two overlapping causes of action are made to grow where one has grown before, the possibility of double recovery is real. It cannot be obviated by the method suggested in the majority opinion [deducting from the computation of damages in the wife’s consortium action any compensation given her husband in his action for the impairment of his ability to support], because there is no assurance that the wife’s action will be tried first, or even that the two actions will be filed in the same court. A requirement of compulsory joinder of the two causes of action would help, but no such requirement exists.” ⁶

In view of the possibility of double recovery if the wife were given a consortium action, we must conclude that this ease involves a permissible classification rather than an impermissible discrimination. Krohn v. Richardson-Merrell, Inc., 406 S.W.2d 166, 168, 169 (Tenn.Sup.Ct.1966), certiorari denied, 386 U.S. 970, 87 S.Ct. 1160, 18 L.Ed.2d 129; Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605, 608 (1962). All federal courts of appeals that have considered the subject have denied consortium rights where that is the lex loci fori. Carey v. Foster, 345 F.2d 772 (4th Cir. 1965); Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963; state law considered in determining maritime law), certiorari denied, 376 U.S. 949, 84 S.Ct. 965; Criqui v. Blaw-Knox Corporation, 318 F.2d 811 (10th Cir. 1963) ; Sestito v. Knop, 297 F.2d 33 (7th Cir. 1961); Filice v. United States, 217 F.2d 515 (9th Cir. 1954); O’Neil v. United States, 92 U.S.App.D.C. 96, 202 F.2d 366 (1953); ⁷ Werthan Bag Corp. v. Agnew, 202 F.2d 119 (6th Cir. 1953). We decline to depart from this impressive array of modern authority.

While we would prefer to accord the wife a consortium cause of action, it is for the Indiana legislature or judiciary to decide whether to recognize this emerging tort. It is unfitting for us to interfere in such a question of State policy under the guise of the Equal Protection clause.

The judgment of the District Court is affirmed.

1 . Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E. 860 (1933); Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.N.S., 236 (1912); Miller v. Sparks, 136 Ind.App. 148, 189 N.E.2d 720 (1963).

2 . Unless she has a right to sue for loss of consortium, plaintiff does not dispute the District Court’s holding that under Boden v. Del-Mar Garage, supra, note 1, she cannot state a cause of action for “mental anguish” without alleging that she suffered some physical injury. No such allegation is contained in the complaint.

3 . Dini v. Naiditch, 20 Ill.2d 406,170 N.E.2d 881, 86 A.L.R.2d 1184 (1960), and Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137 (1967). They followed the landmark decision of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (1950), certiorari denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624.

4 . As the District Court pointed out in the Lunow case, “Nor can it be said in the light of the overall marriage relationship, the basic differences between the spouses and the different rights and responsibilities as between the spouses that invidious discrimination and an unreasonable classification is inherent in allowing the husband to recover for loss of consortium and recognize no such cause of action in the wife.” (Memorandum opinion, p. 9.)

5 . These are the latest statistics available here and are for March 1964. U.S. Department of Labor, Bureau of Labor Statistics Reprint #2457.

6 . On the other hand, the Sitaffer and Karezewslci opinions, supra, express the view that double recovery can be avoided by deducting from the wife’s damages any amount recovered by the husband for loss of earning power. See 183 F.2d at p. 819 and 274 F.Supp. at p. 173.

7 . In O’Neil, decided just 3 years after its Sitaffer case that gave the wife an action for loss of consortium in the District of Columbia, the Court of Appeals followed Maryland law in denying the wife such an action. This indicates that Hit-offer was not based on the Equal Protection clause.