Thomas v. Deason, 1438.

• Decision Date: 09 October 1970
• Docket Number: No. 1438.,1438.
• Citation: 317 F. Supp. 1098
• Parties: Mildred THOMAS, Plaintiff, v. Frank DEASON and Charles A. Deason d/b/a Deason Bros. Grain & Trucking Company, Davis Wright and Roadway Express, Inc., Defendants.
• Court: U.S. District Court — Western District of Kentucky

317 F. Supp. 1098

Mildred THOMAS, Plaintiff, v. Frank DEASON and Charles A. Deason d/b/a Deason Bros. Grain & Trucking Company, Davis Wright and Roadway Express, Inc., Defendants.

No. 1438.

United States District Court, W. D. Kentucky, Bowling Green Division.

October 9, 1970.

Bell, Orr, Ayers & Moore by Robert W. Dickey, Bowling Green, Ky., for plaintiff.

Harlin, Parker, Ricketts Lucas & English, by James H. Lucas, Bowling Green, Ky., for Frank Deason, Charles A. Deason and Davis Wright.

Fowler, Rouse, Measle & Bell, by Robert H. Measle, Lexington, Ky., for Roadway Express, Inc.

MEMORANDUM

SWINFORD, District Judge.

This is a diversity case wherein the plaintiff, Mildred Thomas, is suing for the loss of consortium of her husband, Ellis W. Thomas, due to the alleged negligence of the defendants, Frank Deason and Charles A. Deason, d/b/a Deason Bros. Grain & Trucking Company, Davis Wright and Roadway Express, Inc.

The action is currently pending on a motion to dismiss by defendant Roadway Express, Inc. As grounds for its motion, the defendant asserts: 1) that a similar action has been commenced in the United States Federal District Court for the Western District of Kentucky; and 2) that the complaint fails to state a claim upon which relief can be granted.

The defendant's first contention will not sustain a motion for dismissal. The defendant pleads that another action, Civil Action Number 1390, styled Mildred Thomas and Ellis W. Thomas v. Frank Deason and Charles A. Deason, d/b/a Deason Bros. Grain & Trucking Company, Davis Wright and Roadway Express, Inc. has been filed in this court and claims that the intervening plaintiff in that action, Mildred Thomas, has by her intervention alleged a cause of action, identical to the cause maintained in this suit, against the same defendants. The defendant argues that if the present action is permitted to continue the parties will be exposed to multiple suits involving the same subject matter, resulting in a wasteful expenditure of time and money. It is also suggested that Civil Action 1390 would be res judicata as to this litigation. The defense of res judicata, however, is inappropriate at this time, for fundamental to that doctrine is the ability to assert a final judgment.

The fact that another action is pending in a federal court is not a ground for dismissal of the case. 1A Barron & Holtzoff (Wright Ed.) section 351. The proper solution to the problems created by the existence of two or more cases involving the same parties and issues, simultaneously pending in the same court would be to consolidate them under Rule 42(a) of the Federal Rules of Civil Procedure. 2B Barron & Holtzoff (Wright Ed.) sections 941, 942. For reasons hereinafter set out, it is this court's opinion that the motion to dismiss must be overruled. The question of consolidation is therefore appropriate, and will be considered at a later point in this memorandum.

The decisive issue raised by the defendant's motion to dismiss for failure to state a claim upon which relief may be granted is whether a wife may maintain an action for loss of consortium. The courts, as well as legal scholars are divided on the question. The weight of authority seems to be that a wife may not assert a claim for loss of consortium if the injury to the husband is caused by negligence, but may if the injury or interference with the marital relation is intentional. 23 A.L.R.2d 1378. Notwithstanding how other jurisdictions may approach the question, and regardless of widespread disagreement as to a wife's right to consortium, this court is compelled to apply the law as followed in Kentucky.

It was well settled in Kentucky, prior to a recent case decided by the Kentucky Court of Appeals and legislation enacted subsequent to that decision by the 1970 session of the General Assembly, that a wife could not recover for loss of consortium if the interference to her marital relation was due to the negligent injury of her husband. The Kentucky Court of Appeals so held in Cravens v. Louisville & N. R. Co., 195 Ky. 257, 242 S.W. 628 (1922). The rule as established in Cravens was followed in Commercial Carriers, Inc. v. Small, 277 Ky. 189, 126 S. W.2d 143 (1939), and Le Eace v. Cincinnati, Newport & Covington Ry. Co., Inc., 249 S.W.2d 534 (Ky.1952). The question was once again presented to the Kentucky Court of Appeals in Baird v. Cincinnati, New Orleans & Texas Pacific R. Co., 368 S.W.2d 172, wherein the court seemed to waver from the stand it had previously expounded, but nevertheless reaffirmed its adopted position. The Court in Baird acknowledged the incongruity of the law whereby a husband is able to recover for the loss of conjugal rights, but a wife is not. Judge Williams, joined by Judge Palmore, dissented from the Court's opinion:

"The conclusion of the majority opinion is reached by application of the doctrine of stare decisis. The salutary effect of adhering to the doctrine of stare decisis is well recognized. But, when the reason for the original rule no longer exists, then stare decisis should not operate to continue an outmoded principle.

"The legal status of a married woman has changed to such an extent that, if a husband should have the right to recover for the loss of consortium, then surely the wife should be entitled to the same right. But, in my opinion, there is no discernible reason to allow the right to either."

The trend of recent years seems to be to grant to the wife the same rights enjoyed by the husband, including the right to consortium. Despite the Court of Appeals' apparent lack of abiding conviction in the propriety of the...