Smither and Company, Inc. v. Franciska T. Coles

FAHY, Circuit Judge

(dissenting).

Two questions were decided in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57 , 183 F.2d 811 , certiorari denied 340 U.S. 852 , 71 S.Ct. 80 , 95 L.Ed. 624 . One was, “a wife has a cause of action for loss of consortium, due to a negligent injury to her husband.” This reached new ground in this jurisdiction, after a painstaking analysis of the legal principles involved and relevant decisions. The present opinion does not disturb this part of Hitaffer. The second problem presented in Hitaffer, as a consequence of the first, was whether section 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1426 (1927), 33 U.S.C. § 905 (1952), 33 U.S.C.A. § 905 , “cuts off the wife’s right to bring this action” for loss of consortium. We held that it did not. Thereafter an effort was made to secure Congressional amendment of the Act so as to cut off the right, but no amendment thus far has been made. 1 The Court itself now overrules this part of Hitaffer.

The Court assumes, as Hitaffer decided, that there is a right of action in the wife for loss of consortium, not dependent upon the rights of the injured husband. Only the rights which cluster around him, not this separate one of the wife in her own right, I think are within the exclusive compensation provisions of section 5. Those provisions are that the employer’s liability under the Act “shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty,” but only “on account of such injury or death.” Hitaffer reasonably construed this not to include the employer’s liability to a spouse for loss of consortium, once it were held that this was an independent cause of action against the employer. In Ryan Stevedoring Co. v. Pan. Atlantic S.S. Corp., 350 U.S. 124 , 76 S.Ct. 232 , 100 L.Ed. 133 , decided after Hitaffer, it is held that a right independent of that of the employee is not cut off by the exclusive liability clause of section 5 of the Act. The Supreme Court there said:

“The obvious purpose of this provision is to make the statutory liability of an employer to contribute to its employee’s compensation the exclusive liability of such employer to its employee, or to anyone claiming under or through such employee, on account of his injury or death arising out of that employment. In return, the employee, and those claiming under or through him, are given a substantial quid pro quo in the form of an assured compensa *227 tion, regardless of fault, as a substitute for their excluded claims.” Id. 350 U.S. at page 129 , 76 S.Ct. at page 235 .

Even though loss of consortium results from the injury which gives rise to the employee’s claim, the spouse’s right defined in Hitaffer is not a claim under or through the employee. Furthermore, the spouse is given no quid pro quo as a substitute for her excluded claim. In contrast with the employee, her right is extinguished, under this Court’s present ruling, with no assured or other compensation.

Language in section 5 following the exclusive liability clause gives support to Hitaffer. This language is that if an employer fails to secure payment of compensation “an injured employee, or his legal representative in case death re* suits” may elect “to maintain an action at law or in admiralty for damages on account of such injury or death,” in which event certain defenses are barred to the employer. This provision omits reference to either husband or wife. From this it seems to follow that if the exclusive liability clause, which does contain such reference, intended to include a husband’s or wife’s separate cause of action for loss of consortium when compensation is secured by the employer, nevertheless such cause of action is not preserved at law or in admiralty, with certain defenses barred, when the employer fails to secure compensation. This is not easily to be accepted. Reconciliation of the two segments of section 5 can be obtained by construing the reference to husband or wife in the first, or exclusive liability, clause as a husband or wife in a representative or derivative capacity in relation to the employee spouse who is injured, that is, as a “legal representative,” which is the sole and all-inclusive expression used in the second segment of the section. This gives the whole of section 5 a consistent meaning and would leave the spouse free to maintain a separate action for loss of consortium, with certain defenses barred, when the employer has failed to take out the compensation coverage.

The independent cause of action of the spouse for loss of consortium simply was not dealt with by the statute. Its judicial recognition might warrant further legislative consideration of the whole problem, but that should be for the Congress.

I am authorized to say that Chief Judge EDGERTON and Circuit Judge BAZELON join in this dissent.

. H.R. 5566, 82nd Cong., 1st Sess. (1951), referred to Committee, 97 Cong.Rec. 12500 (1951), where it seems to have remained.