Kotsiris v. Ling

• Decision Date: 20 February 1970
• Citation: 451 S.W.2d 411
• Parties: Minnie KOTSIRIS, Appellant, v. George Ernest LING, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 411

451 S.W.2d 411

Minnie KOTSIRIS, Appellant, v. George Ernest LING, Appellee.

Court of Appeals of Kentucky.

Feb. 20, 1970.

Nathan B. Cooper and Ronald J. Bamberger, Bratcher, Cooper & Flaherty, Owensboro, for appellant.

Wilson & Wilson, Owensboro, for appellee.

CULLEN, Commissioner.

Andrew Kotsiris asserted a claim against George Ling for damages for personal injuries alleged to have been sustained by Kotsiris as the result of Ling's negligence. The claim was settled. Shortly thereafter Mrs. Kotsiris brought the instant action against Ling, seeking to recover damages for loss of consortium. Relying upon Baird v. Cincinnati, New Orleans & Texas Pacific R. Co., Ky., 368 S.W.2d 172, the circuit court dismissed the action, on the ground that under Kentucky law a wife has no cause of action for loss of consortium of her husband. Mrs. Kotsiris has appealed, asserting that the time has come for the court to give recognition to a wife's cause of action for loss of consortium. We agree.

Since 1950, when Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, came down, some 20 jurisdictions have come over to the view that the wife has a cause of action for loss of consortium. Present indications are that the Restatement also will soon swing over. See Tentative Draft No. 14, The American Law Institute, Restatement of the Law, Second-Torts, April 15, 1969. The majority of jurisdictions, however, still adhere to the ancient rule that the wife does not have the cause of action. Up to now, Kentucky has been in that group. See Baird v. Cincinnati, New Orleans & Texas Pacific R. Co., Ky., 368 S.W.2d 172.

The cases, pro and con, are collated in an annotation in 23 A.L.R.2d 1378, and the Later Case Service for that annotation.

In the 20 years since Hitaffer a tremendous amount of writing has been done on the subject, and it might even be said that the subject has been 'belabored' in the sense, as stated in Commonwealth, Department of Highways v. Miller, Ky., 388 S.W.2d 135, of having been worked carefully upon, beat soundly, thwacked repeatedly, drubbed, and assailed verbally. We see no need for us to undertake any substantial addition to the wealth of literature on the question. It will be enough, we think, for us to indicate briefly what our holdings are, and where we find the support for them.

We hold, first, that a wife has a cause of action for loss of consortium of her husband resulting from an injury to the husband due to the negligent act of another. We are persuaded to this view by the reasons set forth in Hitaffer and in Hekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669, and Shepherd v. Consumers Cooperative Association, Mo., 384 S.W.2d 635. The fact is that this court was much persuaded to that view in Baird, but declined to depart from the former rule, out of regard for the doctrine of stare decisis. The court now feels that the considerations militating in favor of recognition of the wife's cause of action outweigh the considerations on which the doctrine of stare decisis rests. The court also finds that the changing of the rule is fully within the competence of the judicial function. See Dietzman v. Mullin, 108 Ky. 610, 57 S.W. 247, 50 L.R.A. 808; Brown v. Gosser, Ky., 262 S.W.2d 480, 43 A.L.R.2d 626. We expressly overrule Baird v. Cincinnati, New Orleans & Texas Pacific R. Co., Ky., 368 S.W.2d 172, and our cases cited therein to the extent they hold that a wife has no cause of action for loss of consortium of her husband resulting from injury to him due to the negligent act of another.

In recognizing the cause of action, we feel it is necessary for us to define its scope and limitations. First, the cause does not include any right of recovery for loss of financial support by the husband. That is because the source of the wife's right to support is the husband's earning capacity, for impairment of which he is entitled to recover. Second, the cause does not include any right of recovery for nursing services rendered or to be rendered to the husband by the wife. The reason for this is that according to the general rule (which we hereby adopt) the husband is entitled to recover from the tortfeasor for the value of nursing services even though the services are rendered or to be rendered by the wife. See 22 Am.Jur.2d, Damages, sec. 207, p. 289; Annotation, 90 A.L.R.2d 1330. If the tortfeasor is required to pay to the husband the cost of obtaining the services, obviously the wife cannot also recover from the tortfeasor for rendering the services. We find support for our view in this regard in Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669, and we hold, as...