Appeal from Circuit Court, Multnomah County. William M. Dale, Judge.
Chris P. Ledwidge, Portland, argued the cause for appellant. With him on the briefs were Ledwidge & Ledwidge, Portland.
Charles R. Holloway, III, Portland, argued the cause for respondents. With him on the brief were Tooze, Kerr & Peterson, Portland.
In Banc. Holman, J. Tongue, J., concurs in the result. Bryson, J., dissenting.
This is an action for damages for loss of consortium alleged to have been suffered when plaintiff's husband was injured in an accident. Plaintiff appealed from a judgment for defendant which was entered after a demurrer was sustained to plaintiff's complaint and plaintiff refused to plead further.
Defendant Thomas, while operating a truck in the state of Washington in the course of his employment for defendant Shepler, is alleged to have negligently injured plaintiff's husband. Defendant Thomas is an Oregon resident and his employer, defendant Shepler, is an Oregon corporation. Plaintiff and her injured husband are residents of Washington. Washington, by court decision, has followed the common law rule that no cause of action exists by a wife for loss of consortium. Ash v. S.S. Mullen, Inc., 43 Wash 2d 345, 261 P2d 118 (1953). Oregon allows such an action, ORS 108.010.
The issue is whether Oregon law or Washington law is applicable. It is with some trepidation that a court enters the maze of choice of law in tort cases.
No two authorities agree.*fn1 Until recently, this court was committed to the traditional, arbitrary, and much criticized rule that in tort cases the law of the place of the wrong, lex loci delicti commissi, governs. However, in the case of Casey v. Manson Constr. Co., 247 Or 274, 428 P2d 898 (1967), this court adopted the equally maligned and almost universally criticized "most significant relationship"*fn2 approach of Restatement (Second) Conflict of Laws.
However, before engaging in the mysteries of the solution of an actual conflict, we must make certain that we have a conflict of consequence which requires a choice. All authorities agree that there is such a thing as a false conflict which requires no choice. However, typically, there is no agreement on what constitutes a false conflict. Professors Cavers,*fn3 Currie,*fn4 and Sedler,*fn5 together with Mr. Justice Traynor,*fn6 appear to urge that the policy or governmental interest behind the law of each state be examined and that a false or avoidable conflict be considered present if no substantial conflict is found to exist between the states' policies or interests in the particular factual context in which the question arises.*fn7 On the other hand, Professors Leflar,*fn8 Rosenberg,*fn9 and Ehrenzweig*fn10 see a false conflict as being limited to a situation
where the laws of two states are the same or would produce the same results. Where the laws of two states are not the same or would not produce the same results if applied, these latter authorities see the search for and the comparison of the interests of the two states as a means (not necessarily the best or only means) of ...