Owen v. Illinois Baking Corporation

• Decision Date: 07 February 1966
• Docket Number: Civ. A. No. 4619.
• Citation: 260 F. Supp. 820
• Parties: Irene OWEN, Plaintiff, v. ILLINOIS BAKING CORPORATION, an Illinois corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

260 F. Supp. 820

Irene OWEN, Plaintiff, v. ILLINOIS BAKING CORPORATION, an Illinois corporation, Defendant.

Civ. A. No. 4619.

United States District Court W. D. Michigan, S. D.

February 7, 1966.

Sinas, Dramis, Brake & Werbelow, Lansing, Mich., Lee C. Dramis, Lansing, Mich., of counsel, for plaintiff.

Cholette, Perkins & Buchanan, Grand Rapids, Mich., Richard D. Ward, Grand Rapids, Mich., of counsel, for defendant.

OPINION

FOX, District Judge.

After a trial by jury, a judgment of $30,000 was returned in favor of plaintiff's husband in companion case 4618, for injuries received in an automobile collision between cars driven by plaintiff's husband and an employee of defendant. In the instant case, a judgment of $5,000 was returned in favor of plaintiff for loss of consortium as a result of the accident.

Defendant has moved the court to set aside the judgment in case 4619, and seeks a new trial in case 4618, D.C., 235 F.Supp. 257.

The basis on which the court is requested to set aside the judgment of $5,000 is that under the decided cases in Indiana, which was the situs of the accident, there is no right of a wife to recover damages for loss of consortium, although such right is recognized as to a husband. Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1953). The opinion in that case expressed marked dissatisfaction with the rule, but felt that under the decided precedents, no other decision was possible.

In the opinion of this court, following the reasoning of the United States Court of Appeals for the District of Columbia Circuit, modern concepts of the marital relationship do not allow such anachronistic practices to be perpetuated in the law. In the case of Hitaffer v. Argonne Co., 87 U.S.App.2d 57, 183 F.2d 811, 23 A.L.R.2d 1366, cert. den. 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, the court held that a husband and wife have, in the marriage relation, equal rights which will receive equal protection of the law. In the subsequent case of Smither & Co. v. Coles, 100 U.S App.D.C. 68, 242 F.2o 220, cert. den. 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129, the District of Columbia Circuit overruled the decision in the Hitaffer case inasmuch as it related to the scope of exclusive liability provisions in the District of Columbia Workmen's Compensation Act, D.C.Code 1961, § 36-501 et seq. However, it recognized the holding in that case that a wife has a protected right to maintain an action for loss of consortium.

As pointed out by the Hitaffer court, the right existed at common law, and when female emancipation resulted in the passage of enabling legislation removing previous disabilities on a woman's right to act in her own behalf before the law, the last barrier to the maintenance of such a suit should have been removed. (Id. 183 F.2d at 816.)

In Indiana, two theories have been advanced to support the existing rule. In Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236 (1912), the court held that this interest of the wife was not a property right or derived from a contract of bargain and sale, and it lies in an area which the law will not enter except out of necessity. However the right is characterized, it arises from the marital relation, and to say that it inheres in the husband but not the wife is to indulge in what the Hitaffer court termed "legal gymnastics." And to grant a husband the right to sue on this...