SMITHER AND COMPANY, Inc., Appellant, v. Franciska T. COLES, Appellee.
No. 12804.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 26, 1956. Decided Feb. 21, 1957.
Writ of Certiorari Denied June 10, 1957. See 77 S.Ct. 1299.
242 F.2d 220
It is Further Ordered by the Court that the aforesaid judgment of the Municipal Court of Appeals be, and it is hereby, reversed and that this case be, and it is hereby, remanded to the Municipal Court of Appeals with directions to enter a judgment reversing the judgment of conviction and remanding this case to the Municipal Court so that the information may be dismissed.
Mr. Justin L. Edgerton, Washington, D. C., with whom Messrs. Charles E. Pledger, Jr., and Randolph C. Richardson, Washington, D. C., were on the brief, for appellant.
Mr. William E. Owen, Washington, D. C., with whom Mr. Ralph Stein, Washington, D. C., was on the brief, for appellee.
Messrs. David G. Bress and Leonard Braman, Washington, D. C. (both appointed by this Court), filed a brief as amici curiae, urging affirmance.
Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.
BURGER, Circuit Judge.
Charles E. Coles, husband of appellee, was injured in the course of employment by appellant. Coles received compensation benefits in due course, under the
After Coles had received the maximum benefits under the Act his wife brought action in the district court asking damages for loss of consortium as a result of the injuries sustained by Coles while working as a painter for appellant. The wife‘s complaint alleged negligence of the appellant in supplying its employee with a defective ladder, the breaking of which is said to have caused the fall and injury.
At the conclusion of appellee‘s opening argument and again after presentation of appellee‘s case appellant moved for a directed verdict on the ground that a separate actiоn by a wife based on injuries sustained by her husband in the course of employment was explicitly barred by Section 5 of the Act, supra note 2, and that Hitaffer v. Argonne Co.,3 which held to the contrary, was incorrectly decided by this court. The trial judge correctly regarded himself bound by that holding and denied appellant‘s motion. The appellant offered no defense on the issue of liability, standing on his motion for a directed verdict and argument as to the error of the Hitaffer case.
We agree with appellant that this court incorrectly applied the controlling statute in the Hitaffer case, and for the reasons now discussed we overrule Hitaffer v. Argonne Co. as to the interpretation of Section 5 of the Act.
In deciding the Hitaffer case this court departed from two concepts previously regarded as settled; we are called upon to deal with only one of these points on this appeal.4 To reach the statutory question there presented, namely, the “interpretation of the breadth of the exclusive liability provisions of the
The еssential statutory provision which governs, and which we think requires our overruling of the Hitaffer case, reads:
“The liability of an employer prescribed in section 904 of this chapter 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 * * * * * on account of such injury or death * * *.” (Emphasis added.)
We аre not unmindful, to paraphrase Mr. Justice Frankfurter and Judge Learned Hand,6 that the literal words of a statute sometimes can be misleading, and that we do not stop but only begin with the words. Sometimes the words are such that the purposes of the statute and the entire statutory scheme must be taken into account. The words must be read and interpreted as a part of the whole.
The history of the development of statutes, such as this, creating a compensable right indepеndent of the employer‘s negligence and notwithstanding an employee‘s contributory negligence, recalls that the keystone was the exclusiveness of the remedy. This concept emerged from a balancing of the sacrifices and gains of both employees and employers, in which the former relinquished whatever rights they had at common law in exchange for a sure recovery under the compensation statutes, while the employers on their part, in aсcepting a definite and exclusive liability, assumed an added cost of operation which in time could be actuarially measured and accurately predicted;7 incident to this both parties realized a saving in the form of reduced hazards and costs of litigation. As stated by Mr. Justice Brandeis in Bradford Electric Co. v. Clapper, 1932, 286 U.S. 145, 159, 52 S.Ct. 571, 576, 76 L.Ed. 1026, the purpose of these laws was to provide “not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinative.” Thus, anything that tends to erode the exclusiveness of either the liability or the recovery strikes at the very foundation of statutory schemes of this kind, now universally accepted and acknowledged.
There is some significance in the statutory history of Section 5 of the Longshoremen‘s and Harbor Workers’ Act. The Act is based on the New York Workmen‘s Compensation Law, § 11, McK. Consol.Laws, c. 67,8 whose “exclusive liability” clause has been termed the broаdest of the three types in existence.9 Sec-
In 1949 Congress amended the
The “exclusive” nature of legislation delimiting an employer‘s liability has been consistently stressed by the Supreme Court. Such federal acts have been interpreted as pre-empting similar rights arising under state workmen‘s compensation laws, and also as barring common-law rights of action. In New York Central & Hudson River R. R. Co. v. Tonsellito, 1917, 244 U.S. 360, 37 S. Ct. 620, 61 L.Ed. 1194, the effect of the
“There we held the [Federal Employers’ Liability] act ‘is comprehensive and, also, exclusive’ in respect of a railroad‘s liability for injuries suffered by its employees * * *. Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the State.”13
Appellee urges that the instant Act, which was adopted in 1927, cannot be construed to bar a right not then recognized as existing in the wife, and not acknowledged by this court until 1950. The most that can be said for this argument is that Congress did not take into account that one day, whether by judicial or legislative action, a wife might be granted the right to sue for loss of consortium on account of an injury to the husband. Possibly this may be true for the legislative history is not conclusive. It is equally arguable, however, that Congress anticipated such an eventuality and
The opinion in the Hitaffer case emphasized the independent nature of the wife‘s right to consortium, stating, “In this jurisdiction the action for loss of consortium does not stand on subrogation but arises directly from the tort.” The court then proceeded to hold it “contrary to reason” that Section 5 would cut off independent rights of third persons, e. g. the “independent” right of the wife. To substantiate this latter proposition the court relied on certain contribution cases permitting a third person joint tortfeasor, sued by an injured employee previously compensated under the Act, to implead the employer.15 Not only has it since been decided that the employer is not liable for contributiоn to a third party,16 but the cases cited in the Hitaffer opinion involved indemnity claims based on an express or implied promise of reimbursement.17 The assertion of independent contractual rights against an employer is quite different from a claim based on damages “on account of an injury.”18 The one is based on contract and the other on a tort concept. As stat-
If the rights of Mrs. Coles arise “directly from the tort” done by appellant, as stated in Hitaffer, her “rights” must still be regarded as within the meaning of the statute which tells us that the statutory liability is to replace all other liability of the employer to the employee, the employee‘s husband or wife and various others who, prior to the statute might have had a right to recover. In the Hitaffer opinion this court cоnceded that “the plain and literal language” of this statute could be construed to bar “any right of action flowing from the compensable injury,” but rejected that interpretation. We think the statute cannot be read any other way without doing extreme violence to those “plain and literal” words read in the light of the purposes of the Act.
Whether the right of a spouse be regarded as independent, i. e., arising directly from the tort, or as derivative, that right does not come into existence
In the Hitaffer opinion this court attached impоrtance to the fact that a spouse whose consortium action is barred receives no quid pro quo under the Act. To measure the scope of the exclusive liability provision by an inquiry whether or not recovery is provided for every conceivable damage suit is an erroneous test. “As in the case of uncompensated elements of damage, the remedy is barred even if the parent or spouse, being non-dependent, gets no valuable compensаtion rights in place of the common-law or statutory death-action rights destroyed.” 2 Larson‘s Workmen‘s Compensation Law § 66.20 (1952).
The Hitaffer opinion also dwelt on the absence of a distinction within the Act between single and married employees. The simple answer is that the measure of compensation as provided by the Act is the average weekly wage, which, in our
In reaching its conclusion in the Hitaffer case, this court failed to give аny consideration to, and indeed did not even acknowledge, prior decisions of other jurisdictions reaching the contrary result. The case of Swan v. F. W. Woolworth Co., 1927, 129 Misc. 500, 222 N.Y. S. 111, is of particular interest in that the New York court interpreted the exclusive liability clause of the New York Workmen‘s Compensation Act shortly after the federal bill incorporating this provision was passed. The Swan case dealt with a husband suing in a common-law action for loss of services of his wife after the wife had reсeived compensation benefits under the state Workmen‘s Compensation Law. The crucial language of the exclusion was similar to the language of Section 5 of the Act. In construing that language the court said “The act in plain and unambiguous language provides that a husband may not recover for the loss of his wife‘s services, when she is injured in the course of her employment and becomes entitled to compensation.” Swan v. F. W. Woolworth Co., supra, 222 N.Y.S. at page 113.
It is interesting to note that every court whiсh had undertaken to construe the same or similar exclusionary clauses prior to the Hitaffer case had arrived at a result in conflict with the decision of this court in Hitaffer.19 Cases decided subsequent to the Hitaffer case also followed the literal language of statutes cast in substantially the same terms. The Tenth Circuit in Underwood v. United States, 10 Cir., 1953, 207 F.2d 862, construed the exclusive liability provisions of the Federal Employees Compensation Act as barring an action for loss of consortium. The Ninth Circuit subsequently reached the same conclusion in Thol v. United States, 9 Cir., 1954, 218 F.2d 12.20
For the reasons discussed Hitaffer v. Argonne Co. is overruled insofar as it applied Section 5 of the Longshoremen‘s and Harbor Workers’ Act. The judgment appealed from is reversed and the case remanded with directions to enter judgment for appellant pursuant to its motion for directed verdict under
Reversed and remanded.
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 wаs, “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
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 exclusivе 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 аccount 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-
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 сontrast 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 results” may elect “to maintain an action at law or in admiralty for damages on account of such injury or death,” in which еvent 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 dеfenses 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 аll-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,
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.
WARREN E. BURGER
UNITED STATES CIRCUIT JUDGE