Karczewski v. Baltimore and Ohio Railroad Company, No. 66 C 2074.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtJohn Gobel, N. E. Liontakis, R. L. Galassini, Chicago, Ill., for defendant
Citation274 F. Supp. 169
PartiesCharles V. KARCZEWSKI and Alma L. Karczewski, Plaintiff, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Defendant.
Docket NumberNo. 66 C 2074.
Decision Date27 June 1967

274 F. Supp. 169

Charles V. KARCZEWSKI and Alma L. Karczewski, Plaintiff,
v.
The BALTIMORE AND OHIO RAILROAD COMPANY, Defendant.

No. 66 C 2074.

United States District Court N. D. Illinois, E. D.

June 27, 1967.


274 F. Supp. 170

Patrick Mahoney, Edward J. Burke, Chicago, Ill., for plaintiffs.

John Gobel, N. E. Liontakis, R. L. Galassini, Chicago, Ill., for defendant.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Defendant's Motion for Summary Judgment on Count II

This two count action, removed from the state courts, stems from an auto-train wreck in which plaintiff Charles Karczewski, the driver of the automobile, allegedly suffered permanent injuries of a serious nature and was rendered sexually impotent. In count two, Charles' wife Alma Karczewski, seeks recovery of $350,000 for loss of consortium with her husband, which is allegedly a result of defendant's negligent conduct.

The accident occurred in Gary, Indiana. Defendant moves for summary judgment on count two, urging that Indiana law, which is applicable to this suit, does not recognize a cause of action based on loss of consortium brought by the wife of a negligently injured man.

Under Illinois conflict of laws principles, the law of the place of the tort must determine the substantive law in these circumstances. Insull v. New York World-Telegram Corp., 172 F.Supp. 615, 632 (N.D.Ill.1959); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963); Wartell v. Formusa, 34 Ill.2d 57, 59, 213 N.E.2d 544 (1966); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Accordingly, Indiana law is controlling.

It is undisputed that despite criticism in Miller v. Sparks, 136 Ind.App. 148, 189 N.E.2d 720, 722 (1963), Indiana does not allow a wife to sue for loss of consortium because of negligent injury to her husband. Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236 (1912); Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E 860 (1933); Miller v. Sparks, supra; See Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952). However, in the reciprocal situation, he may recover for loss of consortium for negligent injury to his wife. Burk v. Anderson, supra. Thus, if we follow Indiana law, we must dismiss count two of the complaint.

The recent case of Owen v. Illinois Baking Corp., 260 F.Supp. 820 (W.D. Mich.1966), however, casts doubt upon the constitutional validity of the Indiana position. Owen expressly upholds the wife's right to sue in Indiana for loss of consortium, on facts foursquare with those involved here, by holding the current doctrine to be contrary to the equal protection clause of the Fourteenth Amendment. Allowing the husband to maintain an action for loss of consortium while denying a similar action to the wife seemed an arbitrary and unreasonable classification to Judge Fox.

Neither of the parties cited the Owen case in their original briefs, so we asked them to file supplementary briefs

274 F. Supp. 171
discussing the vitality of the Indiana law in light of Owen, and to focus on the equal protection issue, which had not previously been raised by the plaintiff

It is clear that under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal courts in diversity cases must follow state substantive law. However, they may look to the governing federal law when a federal question is raised. Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933); Porter Royalty Pool Co. v. Commissioner of Internal Revenue, 165 F.2d 933 (6th Cir. 1948). It is indisputable that federal law governs when, as here, a state law is challenged for federal constitutional reasons. Thus we would not be bound to adhere to Indiana law, if we determined it to be unconstitutional.

Owen was decided in the Michigan Federal District Court. It was brought by the wife of a man negligently injured by the defendant, to recover damages for loss of consortium. The accident in Owen, like the instant case, occurred in Indiana. Under Michigan conflicts law, the Indiana substantive law governed the action. In reaching its decision, the court cited approvingly the landmark case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 23 A.L.R.2d 1366 (1950), which was the first case to uphold the wife's action for loss of consortium where negligence was the cause of the accident.1 In addition, Judge Fox noted that the Indiana law was severely criticized, although not overturned, in Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952). He concluded that since in Indiana, husbands may maintain actions for loss of consortium for injuries to their wives, wives should have an equal right, and:

"To draw such a distinction between a husband and wife is a classification which is unreasonable and impermissible, and is likewise a violation of the Fourteenth Amendment guarantees." (260 F.Supp. at 822)

But as defendant pointed out, the Court essentially based its decision on the following: (at 821)

"And to grant a husband the right to sue on this right while denying the wife access to the courts in assertion of this same right is too clearly a violation of Fourteenth Amendment equal protection guarantees to require citation of authority."

Thus we think that the Owen case, in and of itself, is not of great precedential weight on the issue, since, as indicated by the above quotation, it did not actually analyze the problem, but essentially stated a conclusion. Nevertheless, the decision in that case raises a major issue, to which we propose to give careful consideration. We think a proper discussion of the issue should begin with an historical analysis of the disputed right of action.

The early status of women during the sixteenth and seventeenth centuries vitally affected the common law attitude toward relational marital interests. The wife was viewed for many purposes as a chattel of her husband, and he was entitled to her services in the eyes of the law. Thus he was given the right at common law to recover for injuries to his wife caused by intentional wrongs, as compensation for the loss of her services. The wife, however, as a "servant" was not entitled to sue for the loss of services of her husband, since in theory he provided none.

The Married Women's Acts, however, removed some of the disabilities of married women, and allowed them to seek redress for torts intentionally inflicted upon their husbands. Indeed, in Indiana, they have long been able to

274 F. Supp. 172
sue for an intentional interference with the marital relationship, in the form of an action for alienation of affections. Holmes v. Holmes, 133 Ind. 386, 32 N.E. 932 (1893)

With the development of the law of negligence, the Indiana courts gave recognition to the husband's right to recover for negligent harm to his conjugal interests. Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952). As has been indicated, wives are denied a similar right in Indiana insofar as consortium is involved.

Indeed until 1950, wives were denied this right in all states. But Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (1950), established the wife's right to sue for loss of consortium for negligent conduct. Since that decision, the courts of last resort for the most part have split on the issue.2

Part of the increased recognition of the wife's rights may have stemmed from the expanded scope of interests thought to be encompassed by the action for the loss of consortium. Whereas originally, it was thought to include only the loss of services, it became clear that benefits peculiar to the conjugal relationship were contained as well. These included certain sentimental values such as loss of love, affection, society and companionship, as well as loss of sexual relations. Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952).

There appeared to the Hitaffer court no reasonable justification for differentiating between marriage partners on this issue. It was determined that since both have an equal interest in the incidents of the marriage, both must have equal redress to the courts for negligent interference with that interest.

Most writers can see no justification for the pre-Hitaffer state of the law.3 And indeed, the reasons suggested by the courts which have refused to follow Hitaffer are less than compelling. We believe they have been demonstrated to be without merit.4

274 F. Supp. 173

One of these arguments is that the wife's action is too remote and indirect to warrant protection. Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236 (1912); Feneff v. N. Y. Central & Hudson River R. R. Co., 203 Mass. 278, 89 N.E. 436, 24 L.R.A.,N.S., 1024. However, it is readily apparent that although the husband's reciprocal loss would logically be equally as remote, he has been allowed to sue therefor. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227, 228 (1960); Hitaffer, supra, 183 F.2d at 818.

Another reason advanced for denying the wife a right of action is that it may result in double recovery since the husband's actions for decreased ability to support his family would overlap with the wife's suit for loss of his services. Deshotel v. Atchison T. & S. F. Ry., 50 Cal.2d 664, 328 P.2d 449 (1958); Nickel v. Hardware Mutual Casualty Co., 296 Wis. 647, 70 N.W.2d 205 (1955). But as was indicated above, consortium involves other elements in addition to loss of services. The wife's interest in these intangibles does not overlap with the husband's action for loss of earning power. These elements are independent of the loss of services factor, and should be assessed separately where the possibility of a double recovery exists. As Hitaffer points out at 183 F.2d page 815, double recovery can be avoided by deducting from the wife's damages, any amount recovered by the husband for loss of earning power.

Some courts insist that since the wife had...

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22 practice notes
  • Women's Liberation Union of Rhode Island, Inc. v. Israel, Civ. A. No. 74-139.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • July 23, 1974
    ...v. York, supra, the Court struck down sex based discriminatory sentencing policies; Karczewski v. Baltimore and Ohio Railroad Co., 274 F. Supp. 169 (N.D.Ill.1967) the denial of consortium recoveries to a wife was declared unconstitutional where such recoveries were allowed to husbands; Whit......
  • Seidenberg v. McSORLEYS'OLD ALE HOUSE, INC., No. 69 Civ. 2728.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 25, 1970
    ...401 (M.D.Ala.1966), declaring unconstitutional a statute excluding women from jury service; and Karczewski v. Baltimore & O.R.R., 274 F.Supp. 169 (N.D. Ill.1967), overturning the Indiana practice of denying women the right to sue for loss of consortium. In the case before us no difference b......
  • Sail'er Inn, Inc. v. Kirby
    • United States
    • United States State Supreme Court (California)
    • May 27, 1971
    ...to the capabilities or characteristics of its individual members. (See Karczewski v. Baltimore and Ohio Railroad Company (D.C., 1967) 274 F.Supp. 169, 179.) Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on......
  • Lombardo v. D. F. Frangioso & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 18, 1971
    ...in the present state of the law. See Owen v. Illinois Baking Corp., 260 F.Supp. 820 (W.D.Mich.); Karczewski v. Baltimore & Ohio R.R., 274 F.Supp. 169 [359 Mass. 536] It has been contended that loss of consortium includes within its scope loss of support and that, since this is an element of......
  • Request a trial to view additional results
21 cases
  • Women's Liberation Union of Rhode Island, Inc. v. Israel, Civ. A. No. 74-139.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • July 23, 1974
    ...v. York, supra, the Court struck down sex based discriminatory sentencing policies; Karczewski v. Baltimore and Ohio Railroad Co., 274 F. Supp. 169 (N.D.Ill.1967) the denial of consortium recoveries to a wife was declared unconstitutional where such recoveries were allowed to husbands; Whit......
  • Seidenberg v. McSORLEYS'OLD ALE HOUSE, INC., No. 69 Civ. 2728.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 25, 1970
    ...401 (M.D.Ala.1966), declaring unconstitutional a statute excluding women from jury service; and Karczewski v. Baltimore & O.R.R., 274 F.Supp. 169 (N.D. Ill.1967), overturning the Indiana practice of denying women the right to sue for loss of consortium. In the case before us no difference b......
  • Sail'er Inn, Inc. v. Kirby
    • United States
    • United States State Supreme Court (California)
    • May 27, 1971
    ...to the capabilities or characteristics of its individual members. (See Karczewski v. Baltimore and Ohio Railroad Company (D.C., 1967) 274 F.Supp. 169, 179.) Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on......
  • Lombardo v. D. F. Frangioso & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 18, 1971
    ...in the present state of the law. See Owen v. Illinois Baking Corp., 260 F.Supp. 820 (W.D.Mich.); Karczewski v. Baltimore & Ohio R.R., 274 F.Supp. 169 [359 Mass. 536] It has been contended that loss of consortium includes within its scope loss of support and that, since this is an element of......
  • Request a trial to view additional results

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