Karriman v. Orthopedic Clinic

1971 OK 83, 488 P.2d 1250, 1971 Okla. LEXIS 301

• Court: Supreme Court of Oklahoma
• Decided: June 29, 1971
• Docket: 42960
• Status: Published

Opinions

DAVISON, Vice Chief Justice.

Plaintiff’s husband was alleged to be permanently disabled as a result of an operation negligently performed by defendant Dr. John E. McDonald, a partner in the defendant Clinic, and the defendant Dr. James C. Mayoza, an associate of the Clinic. Plaintiff’s petition alleges negligence on the part of the two doctors both during the operation and during the post operative period.

Plaintiff further alleges that the negligent acts and omissions on the part of said defendants have caused her husband to be permanently damaged by loss of health, earning capacity, the deprivation of his rights to enjoy normal active life of marriage and that by reason of such negligence her husband is impotent and that she has lost the consortium of her husband by reason thereof. The husband has filed a separate suit against the defendants for his injuries.

The parties will be referred to as they appeared in the trial court.

The trial court sustained the general demurrer of the defendants in its finding that the petition fails to state a cause of action under the laws of the State of Oklahoma, for the reason that a wife cannot recover for the loss of consortium. The trial court dismissed plaintiff’s petition, thus resulting in this appeal.

For reversal plaintiff states in her brief as follows:

“The sole issue in this appeal is one of law and involves a reconsideration of this court’s 1952 holding in Nelson v. A. M. Lockett & Co., [206] Okl. [334], 243 P.2d 719. In that case, the court declined to allow a wife to recover for losses she sustained as a result of injury to her husband. We are asking the court to overrule this decision in the interest of justice and fair play and to bring our law in line with the modern trend of decisions.”

Plaintiff relies on the case of Hitaffer v. Argonne Company, Inc., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (1950), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, and some other cases following Hitaffer holding that the wife may maintain an action for loss of consortium against a tort feasor who negligently caused an injury to her husband.

It will be noted that the majority of the courts which have been called upon to pass on the question since Hitaffer was adopted in 1950 have refused to follow the views set forth in that opinion. See 23 A. L.R.2d Later Case Service, 1378-1397 at pages 740-741. The common law is followed in Oklahoma in the absence of statutory provisions. Title 12 O.S.1961, § 2.

The question presented might be more difficult for decision were it not for the fact that this court has already spoken in two cases, one of which was decided after Hitaffer, in which we refused to follow the opinion in that case. The case of Howard v. Verdigris Valley Electric Cooperative, Inc., 201 Okl. 504, 207 P.2d 784. The syllabus by the court stated:

“The statutes of this state do not give a cause of action to a wife to recover compensation in damages for loss sustained by her on account of personal injuries to her husband, occasioned by negligence of a third party.”

Our opinion in the case of Nelson v. A. M. Lockett & Co., 206 Okl. 334, 243 P.2d 721 (1952), supra, after discussing Hitaf-fer, closed the opinion with the following statement:

“We think neither the reasoning nor the few authorities cited support the conclusion reached in the case, and we reaffirm the rule announced in Howard v. Verdigris Valley Electric Co-Op., supra.”

A number of our closer sister states have refused to follow Hitaffer and still follow the rule that the wife cannot recover for loss of consortium occasioned by defendant’s negligent acts. The reason given in most of the cases is that the courts are reluctant to extend the common law rule and feel that the legislature rather than the courts can better deal with the problem. See Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954); Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321 (1963); La Eace v. Cincinnati, New Port & Covington Ry. Co., Inc., Ky., 249 S.W.2d 534 (1952); Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615 (1964); Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897 (1953); Rush v. Great American Insurance Company, 213 Tenn. 506, 376 S.W.2d 454 (1964).

It should be observed that the life of a husband and father is closely linked with the lives of those members of his family, and a severe injury to him also constitutes an indirect injury to them. If the common law of this state is extended to afford the wife a cause of action, then perhaps we would be called upon to extend a cause of action to the individual children who would also suffer a loss, in different degrees, by reason of the negligent injury to their father.

We feel that we should follow Oklahoma precedent and are of the view that if the present policy in dealing with the problem before us is to be changed it should be done by the legislature, as representatives of the people, and not by this court. The legislature, if it found the law should be changed, could define the extent of liability, designate who maintains the action, provide safeguards against the danger of double recovery, such as a requirement that the wife be joined in the claim of or an action by the husband. The legislature could also provide methods for avoiding multiplicity of suits, rather than trials on a piecemeal basis.

Judgment affirmed.

BERRY, C. J., and WILLIAMS, BLACKBIRD and IRWIN, JJ., concur. JACKSON, J., concurs specially. HODGES, LAVENDER and Mc-INERNEY, JJ., dissent.