Dutton v. Hightower and Lubrecht Construction Co.

• Decision Date: 27 February 1963
• Docket Number: Civ. No. 818.
• Parties: Clarence Herman DUTTON, Plaintiff, v. HIGHTOWER AND LUBRECHT CONSTRUCTION COMPANY, a Corporation, and Waldorf-Hoerner Paper Products Company, a Corporation, Defendants.
• Court: U.S. District Court — District of Montana

214 F. Supp. 298

Clarence Herman DUTTON, Plaintiff, v. HIGHTOWER AND LUBRECHT CONSTRUCTION COMPANY, a Corporation, and Waldorf-Hoerner Paper Products Company, a Corporation, Defendants.

Civ. No. 818.

United States District Court D. Montana, Missoula Division.

February 27, 1963.

Goldman & Jordan, Missoula, Mont., and Donald J. Horowitz, Olympia, Wash., for plaintiff.

Smith, Boone & Karlberg, Missoula, Mont., for defendant Hightower and Lubrecht Const. Co.

Garlington, Lohn & Robinson, Missoula, Mont., for defendant Waldorf-Hoerner Paper Products Co.

MURRAY, Chief Judge.

The motion of plaintiff to amend his complaint by joining his wife Betty Dutton as a party plaintiff, and stating a claim for loss of consortium on behalf of said wife together with the brief in support of said motion, and the brief of defendant Hightower and Lubrecht Construction Company in opposition to said motion having been considered by the court, and the court being fully advised in the premises,

NOW, THEREFORE, IT IS ORDERED and this does order that said motion to amend the complaint be and the same is hereby granted, and the complaint is ordered amended as requested on pages 10 and 10½ of plaintiff's pretrial memorandum filed January 11, 1963.

IT IS FURTHER ORDERED that defendants are granted 20 days within which to plead to said complaint as amended.

In Duffy v. Lippsman-Fulkerson & Co., D.C., 200 F.Supp. 71, this court held that under Montana statutory and case law a wife had the right to recover damages for loss of consortium resulting from injuries negligently inflicted on her husband by the defendant. On reconsidering the question in the light of the brief submitted in this case by counsel for defendant Hightower and Lubrecht Construction Company, the court adheres to the view expressed in the Duffy case, supra, but counsels' brief indicates a misunderstanding of the Duffy opinion which suggests that perhaps that opinion requires some clarification.

First of all, it was not intended to hold in Duffy, as counsel seem to understand, that the wife's action for loss of consortium was created in Montana by the Married Women's Act, and paticularly §§ 36-110 and 36-128, R.C.M.1947. The court agrees that these sections are procedural and create no new rights, but only remove the common law disability of married women to enforce their rights otherwise created and existing.

The right of the wife to consortium in Montana is created and found in other sections of the Montana Code, and particularly § 48-101, R.C.M.1947, which provides that marriage is a personal relation arising out of a civil contract, and § 36-101 which provides that in the marriage contract the husband and wife contract toward each other obligations of mutual respect, fidelity and support. In Wallace v. Wallace, 85 Mont. 492, 516, 279 P. 374, 382, 66 A.L.R. 587, the Montana Supreme Court specifically held that "in addition to support, a wife is entitled to the aid, protection, affection, and society of her husband", all elements embraced within the meaning of the term "consortium". It is thus perfectly clear that, regardless of what rights a wife may or may not have acquired by virtue of her marriage under the common law, under the statutory law of Montana, expressed in §§ 48-101 and 36-101, R.C.M.1947, a woman by her marriage obtains a contractual right to consortium. Therefore, recognizing that the common law is the law of Montana except as changed by statute, if the common law's refusal to permit a wife a cause of action for loss of consortium as a result of a defendant's negligence was based on the premise that at common law she obtained no right to consortium by virtue of her marriage, the common law in that respect has been changed by the above sections of the Montana Code. On the other hand, if the common law recognized the wife's right to consortium, but simply denied her the right to sue for its loss as a procedural matter, the common law in that respect, too, has been changed in Montana by the Married Women's Act.

Counsel also seem to misunderstand the Duffy opinion as basing the holding that a married woman has a cause of action for loss of consortium under Montana statutes and case law on the case of Conley v. Conley, 92 Mont. 425, 15 P.2d 922. As pointed out, the...