Wе have for ruling plaintiff’s motion to strike parts of defendant’s answer.
*682 Plaintiff’s case results from an injury sustained by her husband while an employee of the defendant. The basis of jurisdiction is diversity. The complaint alleges her husband sustained permanent injuries that have totally incapacitated him for employment. She seeks recovery, based on negligence of defendant (as distinguished from willful injury) for loss of support, advice, services, conjugal society, consortium and companionship. The answer admits the injuries to plaintiff's husband, and that they were in the course of his employment.
Those parts of the answer which plaintiff would strike are:
(1) The allegation that the complaint fails to state a cause of action. This portion of the answer presents defendant's claim that the law does not permit recovery by a wife for losses of the character sued for, i. e., loss of consortium due to a third party’s negligence.
(2) The reference to thе Workmen’s Compensation Act of South Dakota. This part of the answer presents defendant’s position that the Compensation Act provides exclusive liability of an employer for injuries or death of an employee . who had failed to elect not to come under the Act, such as plaintiff’s husband, and therefore precludes recovery of the character sought by plaintiff as being outside the provisions of the Compensation Act.
There are other portions of the answer referred to in plaintiff’s motion which we do not consider material in light of the position we take on the two assignments referred to.
The questions posed are ones оf first impression in the State of South Dakota. Excepting the case of Hitaffer v. Argonne Co., 1950,
A federаl court passing on a motion to strike in a diversity case, involving substantive law and not procedure, must view the matter the same as a state court. We are just another state court in these premises.
The Hitaffer case is interesting. It could well be the beacon showing the way, based on reason, to a more modern and enlightened ruling on the rights of married women in courts of law, and providing a remedy to enforce those rights. But the light must first be seen by the state courts if the ruling is to be recognized in the federal courts outside the District of Columbia. If we understand our position, as given in Erie R. Co. v. Tompkins,
“In West v. American Telephone & Telegraph Co.,311 U.S. 223 ,61 S.Ct. 179 ,85 L.Ed. 139 , the doctrine was extended further to require the federal courts in such cases, where the highest court of the statе has not pronounced on the subject, to ascertain from all the available data what the state law is and to apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of ‘general law’ and however much the state rule may have departed from prior decisions of the federal courts.” (Emphasis added.)
*683
Plaintiff doubtless gets some consolation from two opinions of the Supreme Court of the Statе of South Dakota. In Moberg v. Scott,
“We prefer to base our decision on broader grounds.”
The court then cites various statutеs of the State of South Dakota, a number of court decisions, and concludes:
“Therefore either upon present-day common law, in view of the discoverture of the wife by statute, or because of other statutеs, the courts of nearly all of the states in the Union, with the exception of Wisconsin, Maine, and New Jersey, sustain the wife’s right to bring an action similar in character to this. For both reasons we sustain the complaint and apprоve the ruling of the trial court.”
Manifestly the court must have been referring to an action for loss of consortium by a wife based upon willful wrong because there were no decisions at' the time of the Moberg ruling which supportеd recovery by the wife for loss of consortium on the basis of negligence only.
Another case by the Supreme Court of South Dakota is Swanson v. Ball,
“The decisions that we have just referred to we believe conclusively establish the law in this instant case to the effect that independent of any specific statute the wife has а cause of action against anyone wrongfully interfering with the marital relationship regardless of the agency or instrumentality employed to inflict the loss. * * *
“The right of the wife to the consortium of the husband is one of her persоnal rights * * 290 N.W. loc. cit. 483.
The foregoing language is susceptible of interpretation as support for plaintiff’s case as pleaded if isolated from the text, but in view of the case which was before the court, in so far as plaintiff’s pleading is concerned, we cannot take this language as indicating the rule of South Dakota with respect to the right of a wife to recover for loss of consortium by reason of a negligent injury to the husband to bе any different from the rule announced in other jurisdictions considering the question.
The court said in the Erie case that there is no federal common law. There have been declarations to the contrary. Perhaps a more correct statement would be that there is no federal common law in diversity cases.
The law on the question now before the court can be stated very simply. It is that outside of the District of Columbia, in the cases whiсh have passed upon the question of a wife’s right to maintain a suit for loss of consortium based on negligence, the holdings are that plaintiff cannot maintain the action. This status of the law is recognized in the Hitaffer case. Plaintiff by brief admits her legal predicament in that respect.
*684 We do not have the right to make a legal ruling, as the law for the State of South Dakota, independent of what we believe the law is, based on the decisions оf other states in the Union. Since we cannot find a single decision supporting plaintiff’s position, 2 and many against the plaintiff’s claim, we feel compelled to follow the state authorities in the absence of controlling authority from the State of South Dakota. Therefore we hold that the allegations, of the answer entitled “First Defense” are good and cannot be stricken on plaintiff’s motion.
As to the second assignment, the statutes of Sоuth Dakota admit of but one interpretation regarding the right to maintain suits against an employer, based on injury to an employee. The pertinent provisions of the South Dakota Code read as follows:
“64.0103 * * * As to all casеs subject to the provisions of this title, the compensation provided by this title shall be the measure of responsibility which the employer has assumed for injuries to or death of any employee.”
“64.0104 * * * The rights and remedies, herein granted to an employee subject to this title, on account of personal injury or death by accident arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death.”
These two sections should be read together. So read we think their meaning is plain if we give the terms used their ordinary and customary meaning. The first section expressly restricts the employer’s “measure of responsibility” for injuries to any employee. By this action the plaintiff is seeking to extend the measure of responsibility of the employer for an injury to an employee beyond the provisions of the Act. This, plaintiff cannot do.
The second section of the Compensation Act states that the rights and remedies provided by the Workmen’s Compensation Act on account of personal injuries arising out of the employment “shall exclude all other rights and remedies” not only of the employee but of his personal representatives, dependents, and next of kin on account of such injury. The plaintiff, as a “dependent” of an employee, with injuries sustained by the employee in the course of his employment as the only basis of her suit, (and as “next of kin”) comes within the list of those excluded from “all other rights and remedies.”
The case of Underwood v. United States,
Again we are faced with our role as a state court, in a diversity case, and passing on a questiоn of substantive or state statutory law. We will not repeat what has already been said on that subject.
We hold that that part of the answer entitled “For a Third Defense” is rele' vant to the issues raised in the complaint and, if the facts of the ease, as to plaintiff’s husband being injured while an employee of defendant, and injured in the course of his employment, and while un *685 der the Compensation Act, are as set forth in the answer, the third defense sets forth grounds for complete relief from liability.
Notes
. The substance of this memorandum was given orally from the bench in ruling on the motion. In preparing this written memorandum we find two cases which support plaintiff’s position: See Brown v. Georgia-Tennessee Coaches,
. See footnote 1.