Bitsos v. Red Owl Stores, Inc.

• Decision Date: 21 November 1972
• Docket Number: No. Civ. 71-64S.,Civ. 71-64S.
• Citation: 350 F. Supp. 850
• Parties: Fernande C. BITSOS, Plaintiff, v. RED OWL STORES, INC., Defendant.
• Court: U.S. District Court — District of South Dakota

350 F. Supp. 850

Fernande C. BITSOS, Plaintiff, v. RED OWL STORES, INC., Defendant.

No. Civ. 71-64S.

United States District Court, D. South Dakota, S. D.

November 21, 1972.

James E. Doyle, of Doyle, Bierle & Hagerty, Yankton, S. D., for plaintiff.

Richard Braithwaite, of Braithwaite, Cadwell & Braithwaite, Sioux Falls, S. D., for defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

In this action for loss of consortium, the plaintiff, Fernande C. Bitsos, has moved to strike paragraphs V and VI of the defendant's, Red Owl Stores, Inc., answer. Jurisdiction is based upon diversity of citizenship and the requisite amount in controversy.

A brief chronology of the events as stipulated to by both counsel is necessary before reaching the substance of the plaintiff's motion.

August 18, 1968—Anthony (Tony) Bitsos, plaintiff's husband, while in the Yankton, South Dakota, Red Owl Store to repair air conditioning and refrigeration equipment, allegedly incurs damages from a fall on the store's basement stairs.

September 5, 1969—Mr. Bitsos sued Red Owl Stores, Inc., for personal injuries. A jury verdict in favor of Mr. Bitsos was rendered on March 25, 1972, aff'd., 459 F.2d 656 (8th Cir. 1972).

May 17, 1971—Mr. Bitsos files for divorce.

June 29, 1971—Mrs. Fernande C. Bitsos files an answer and counterclaim for divorce.

August 12, 1971—Mrs. Bitsos sues Red Owl Stores, Inc., for loss of consortium arising out of the August 18, 1968, incident.

It is the plaintiff's contention that paragraphs V and VI of defendant's answer are immaterial to her loss of consortium claim because the issues relating to defendant's negligence are res judicata, having been determined against Red Owl in previous litigation by her estranged husband, Tony.

The defendant argues that the principle of res judicata is applicable only between the same parties and their privies. Therefore, inasmuch as Mrs. Bitsos was not a party to Mr. Bitsos' suit and is not in privity to either party of that suit, the negligence issue must be litigated anew in Mrs. Bitsos' consortium action. The question presented, then, is whether or not the jury verdict finding the defendant, Red Owl, negligent in the husband's suit is binding upon Red Owl in the wife's subsequent suit for loss of consortium, or, in other words, is Mrs. Bitsos in privity with her husband.

Because this is a federal diversity case, South Dakota law is controlling. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). My research reveals that the South Dakota Supreme Court has not had occasion to address the issue presented in this motion. It therefore becomes necessary to predict how the South Dakota court would decide if faced with this issue. C. Wright, Law of Federal Courts 240 (2d ed. 1970).

Counsel has referred me to the annotations beginning at 12 A.L.R.3d 933 (1967), which concern the issue before this court. Upon examination it is immediately apparent that South Dakota is absent from its references. It is also evident that the cases cited therein are based solely on the law of the state involved. Thus, while the citations are beneficial in discovering a majority rule and the manner in which other states have handled similar issues, they are unsatisfactory for predicting how the South Dakota Supreme Court would decide.

The South Dakota Supreme Court has recognized the right of a wife to recover damages for loss of consortium resulting from the negligent injury to her husband because of negligent acts or omissions of a third party. Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959). "The right of the wife to the consortium of the husband is one of her personal rights . . ." Swanson v. Ball, 67 S.D. 161, 290 N.W. 482, 483 (1940). The language of the Hoekstra decision, supra, as it traces and illustrates the "slow and tortuous struggle" preceding the recognition of women's rights in the marital state, reflects an opinion that a women's right to sue for consortium is separate and distinct from that of her spouse's action for personal injury damages. Indeed, it appears that prior to 1972, the wife's action for loss of consortium could be tried separately from the husband's claims. Wilson v. Hasvold, 194 N.W.2d 251, 255 (S.D. 1972).

Recently the South Dakota Supreme Court expressed its opinion relative to a procedural aspect of a wife's consortium suit. In the closing paragraph of Wilson v. Hasvold, 194 N.W.2d 251, 255 (S.D. 1972), the court instructed as follows:

As an action for loss of consortium is derivative in nature it should also be combined for trial with the injured spouse's action in order to avoid the danger of double recovery and the expense of duplicate trials. (cases omitted.) (emphasis added).

This court relies heavily upon the word "derivative" in concluding that Mrs. Bitsos is in privity with Mr. Bitsos and, therefore, plaintiff's motion to strike paragraphs V and VI of the answer is granted. The characterization of the loss of consortium action as "derivative" is fairly clear. Any doubts are overcome by a dictionary definition of that term.

DERIVATIVE. Coming from another; taken from something preceding; secondary; that which has not its origin in itself, but owes its existence to something foregoing. Anything obtained or deduced from another. State v. Wong Fong, 75 Mont. 81, 241 P. 1072. Black's Law

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