Swartz v. United States Steel Corporation

304 So. 2d 881, 293 Ala. 439, 1974 Ala. LEXIS 991

• Court: Supreme Court of Alabama
• Decided: December 5, 1974
• Docket: SC 859
• Status: Published

Opinions

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,’ ‘companionship,’ ‘company,’ ‘co-operation,’ and ‘comfort’ have also been employed in defining those mutual and special rights growing out of the marriage covenant. The loss of consortium is the loss of any or all these rights. 12 C.J. 532; 30 C.J. 1123, § 977; 2 Words & Phrases, First Series, 1453; 13 R.C.L. 507.” (Emphasis added.)

We also think that the provisions of our statute concerning the rights of married women (Title 34, Sections 65 through 80) commonly referred to as the Married Women’s Act, also tend strongly to support the conclusion that a wife should have a 'cause of action for the loss of the consortium of her husband, as evidenced by the following particular Sections in said Title 34.

Section 65 provides that all property of the wife however acquired is her separate property, and is not subject to the liabilities of her husband.

Section 72, among other things, provides that the wife must sue alone for all injuries to her property or to her person.

Under the doctrine set forth in Woodson v. Bailey, supra, a wife’s right of consortium must be considered as her separate property right.

We have found no decision defining “institutions” in the context of its employment in Title 1, Section 3. We think, however, as used in Title 1, Section 3, the words “institutions” must be construed to mean the customs, mores, and conditions prevailing at the time the matter in question is being considered. We are of the view that the “institutions” prevailing today would necessitate the conclusion that a wife should have the right to sue for the loss of her husband’s consortium despite the contrary conclusion reached some fourteen years ago in Smith, supra, and that a denial of such right would be inconsistent with our present day institutions.

We therefore find nothing in Title 1, Section 3, necessitating the conclusion reached in Smith, supra.

2. Repudiation of doctrine of stare decisis, and

3. An invasion of legislative function by judicial decree.

We think these two points may well be joined for discussion.

Throughout the years the courts have engaged in housekeeping chores in tidying up the common law of their respective jurisdictions, discarding outworn concepts and refurbishing their common law to meet prevailing social needs.

In the fourteen years since the decision of this court in Smith, supra, the then small minority of five jurisdictions allowing the wife to recover for the loss of consortium of her husband have now become an overwhelming majority. As pointed out in Rodriguez v. Bethlehem Steel Corp., 12 Cal.2d 382, 115 Cal.Rptr. 765, 525 P.2d 669, some 31 jurisdictions today allow the wife to recover for the loss of her husband’s consortium. In five of these jurisdictions the change was brought about by statutory enactment, while in twenty-six the change was accomplished by judicial decision. These twenty-six jurisdictions are listed, together with citations of the cases announcing the change, in footnote 5, at page 769 of Rodriguez, supra, and again we will not list these many citations.

Nor did the courts which have changed the rule by judicial decision find difficulty in so doing. In Gates v. Foley, supra, the Florida court wrote:

“It may be argued that any change in this rule should come from the Legislature. No recitation of authority is needed to indicate that this Court has not been backward in overturning unsound precedent in the area of tort law. Legislative action could, of course, be taken, but we abdicate our own function, in a field peculiarly non-statutory, when we refuse to reconsider an old and unsatisfactory court-made rule.”

In Schreiner v. Clay Fruits, Alaska, 519 P.2d 462, the Supreme Court of Alaska quoted with approval the following statement from Dini v. Naidith, 20 Ill.2d 406, 170 N.E.2d 881:

“Inasmuch as the obstacles to the wife’s action were ‘judge invented,’ there is no conceivable reason why they cannot be ‘judge destroyed.’ [Citations omitted.] We find no wisdom in abdicating to the legislature our essential function of re-evaluating common-law concepts in the light of present day realities.”

This court in the recent case of Huskey v. Smith, 289 Ala. 52, 265 So.2d 596, observed as to stare decisis:

“Stare decisis is a salutary doctrine. But blind adherence to a precedent no longer supported by contemporary knowledge or precedent is not required.”

Many additional excerpts from cases could be set forth.

The American Law Institute in its first Restatement of the Law of Torts (1938), Section 695, consonant with the then prevailing view, denied to the wife a cause of action for harm caused to her marital interest by one who negligently injured her husband. In 1969, the Institute changed its position to permit such action. (See Rest.2d Torts, Tent.Draft No. 14, Section 695, adopted May 21, 1969.)

We therefore conclude that continuing adherence to the doctrine announced in Smith, supra, is not today required or desirable under stare decisis, nor do we feel that we should longer await legislative action to bring our common law into harmony with the realities of today.

4. Possibility of double recovery.

As before stated, this court in Woodson v. Bailey, 210 Ala. 568, 98 So. 809, fully recognized that both the husband and wife had mutual and special rights and interests growing out of the marriage relationship. This separate right in the wife having been recognized, then it must follow that any third party tortiously injuring the husband should respond in damages for injury to the wife’s interest in the continuation of the normal marriage relationship. The husband, too, has a cause of action against the negligent party. Because of the mutuality of interest of the husband and the wife in the marriage, the possibility of overlapping damages must be guarded against. In Diaz v. Eli Lilly & Co. (Mass.), 302 N.E.2d 555, the Massachusetts court pointed out that the key to the problem of double recovery was procedural. The court then elaborated as follows :

“As a practical matter, the consortium claim, when asserted at all, will usually be presented together with the negligence claim for the physical injuries, husband and wife joining in the same action. Such joinder is of course permitted and invited by the procedural rules. When, perchance, separate actions have been brought, the defendant (or plaintiffs in the actions) would normally be entitled to have them consolidated for trial. Further, we think the defendant could ordinarily insist, if he considered it to his advantage, that the other spouse be joined in the main negligence action so that a possible claim for loss of consortium should not be outstanding when the negligence claim was disposed of, leaving a possibility of duplicating recoveries.”

The Massachusetts court based its conclusions on Massachusetts procedural rules governing permissive joinder, consolidation, and compulsory joinder, which in turn were based on corresponding provisions of the Federal Rules of Civil Procedure. Likewise our Alabama Rules of Civil Procedure as to Permissive Joinder (Rule 20), Consolidation (Rule 42), and Compulsory Joinder (Rule 19), are in all respects similar to their counterparts in the Federal Rules. We feel that the above mentioned Alabama Rules of Civil Procedure will assure an orderly disposition of all future claims for loss of consortium.

Related to the double recovery contention is appellant’s contention that a judicial recognition of a wife’s cause of action for loss of consortium would operate retroactively and thereby work an unanticipated hardship on those who had made a settlement only with the husband in reliance upon the previously existing common law rule that a wife had no cause of action for loss of consortium.

Alarm in this regard appears fanciful. The matter being procedural, the courts considering the point have declared that in the interest of fairness and orderly administration of justice, a spouse will not be allowed to maintain an action for loss of consortium, even though the statute of limitations has not run on such action, when the other spouse has received damages from the negligent third party for such loss, whether by settlement, or judgment, made or rendered prior to the effective date of a decision allowing a wife a cause of action for loss of her husband’s consortium. See Deems v. Western Maryland Railway Co., 247 Md. 95, 231 A.2d 514, 525; Diaz v. Eli Lilly & Co. (Mass.) 302 N.E.2d 555, 564; Ekalo v. Constructive Serv. Corp. of Am., 46 N.J. 82, 215 A.2d 1, 8; Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 312, 239 N.E.2d 897, 902; Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669.

We approve and adopt such rule.

5. Giving the wife a cause of action for loss of consortium, of her husband would lead to an extension of causes of action to all those who suffered a loss of a close relative.

The right of consortium grows out of the marriage relationship. Each spouse has an interest personal to himself or herself in the maintenance of this interest. An injury to this relationship is a direct injury to a separate right enjoyed by each spouse. Permitting a cause of action against a third party who tortiously injures such right or interest does not envisage that an action should be allowed to those not within the marriage relationship.

6.. Insuperable difficulties would be encountered in the assessment of damages if the wife be allowed an action for loss of consortium.

There are many situations where difficulties are presented in the assessment of damages, such as damages for loss of consortium recoverable by a husband, the award of damages for pain and suffering, loss of anticipated profits, etc. As stated in Diaz v. Eli Lilly Co., supra:

“The marital interest is quite recognizable and its impairment may be def-finite, serious, and enduring, more so than the pain and suffering or mental or psychic distress for which recovery is now almost routinely allowed in various tort actions.”

We see no reason why the trier of fact should be deemed confronted with insuperable difficulties in assessing damages in a wife’s suit for loss of her husband’s consortium.

For the reasons above set forth, we overrule the case of Smith v. United Construction Workers; 271 Ala. 42, 122 So.2d 153.

We hold that in Alabama each spouse has a cause of action for loss of consortium caused by a tortious act of a third party.

Reversed and remanded.

BLOODWORTH and JONES, JJ., concur. FAULKNER, J., concurs specially. HEFLIN, C. J., concurs in result. MERRILL, COLEMAN, MADDOX and McCALL, JJ., dissent.