Troue v. Marker

• Decision Date: 09 December 1969
• Docket Number: No. 1269S288,1269S288
• Citation: 19 Ind.Dec. 592,253 Ind. 284,252 N.E.2d 800
• Parties: Elizabeth M. TROUE, Appellant, v. Franklin MARKER, Appellee.
• Court: Indiana Supreme Court

Page 800

252 N.E.2d 800

253 Ind. 284

Elizabeth M. TROUE, Appellant, v. Franklin MARKER, Appellee.

No. 1269S288.

Supreme Court of Indiana.

Dec. 9, 1969.

Jack R. Notestine, Fort Wayne, Peters & Peebles, Fort Wayne, of counsel, for appellant.

Robert Robinson, Robert Hollowell, Indianapolis, Hollowell, Robinson, Spencer & Linder, Indianapolis, Bloom & Bloom, Columbia City, of counsel, for appellee.

ARTERBURN, Judge.

This case comes before us for consideration on petition to transfer. See opinion of Appellate Court reported in 249 N.E.2d 512.

The issue presented on this appeal is whether or not the prevailing doctrine in Indiana of denying a wife a recognized cause of action for loss of consortium of her husband should be abrogated and the principle relating thereto should be changed so as to grant a wife such cause of action as a husband has for such loss.

The appellee contends that there is no ground for transfer under Rule 2--23 of this Court, which provides that transfer may be granted on the following ground:

'(4) That the opinion of the Appellate Court:

(a) contravenes a ruling precedent of the Supreme Court, indicating the ruling precedent;

(b) or that the opinion of the Appellate Court erroneously decides a new question of law, concisely stating the same;

(c) or that the Appellate Court failed to give a statement in writing of each substantial question arising on the record and the decision of the court thereon. If this cause is relied on, the petition shall set out or exhibit so much of the record, assignment of errors, briefs and opinion as will affirmatively disclose such failure and establish that the petitioner was prejudiced thereby.'

It is to be noted that none of the items set forth above cover a situation where a transfer is sought to the Supreme Court from the Appellate Court in an attempt to change a ruling precedent of this Court, such as in the situation before us.

Burns' Ind.Stat.Anno. § 4--215 includes only the first two items as grounds for transfer above: (a) and (b). Subsequently thereto this Court by rule added (c). The addition of that subsection of the rule has an interesting history which is applicable to the situation here. Before this amendment was made to the rule, a party sought to transfer a case from the Appellate Court on the ground that the Appellate Court had failed and refused to consider and write upon certain substantial questions raised in the record and properly before the Appellate Court. In Warren v. Indiana Telephone Co. (1939), 217 Ind. 93, 26 N.E.2d 399, we held that regardless of the fact that the statute did not provide for a transfer in such a case, this Court would nevertheless accept the case on transfer and consider the case upon appeal. In reaching that conclusion this Court made an extensive comment upon its powers. It was reasoned that the Appellate Court was primarily a court of appeals, a creature of the legislature, while the Supreme Court was a court of final appeals constitutionally created, and that although the legislature created the Appellate Court and gave it certain powers of appeal, it could not deprive the Supreme Court of its inherent right to review the actions of any lower or intermediate court by limiting the grounds for a petition to transfer. We stated that it was the intent of the framers of the Constitution that the laws of this state should be general and uniform and it is necessary that all courts take their controlling principles of law from one common source, and that source must be the Supreme Court of this state. That opinion further Court that if the legislature had not provided for a petition to transfer to this Court for review of cases in the Appellate Court, this Court at common law could exercise a procedure by writ of certiorari for such review. A litigant should not be left without the remedy of review before the Supreme Court because of a defect in the statute. Under such circumstances it would become the duty of this Court to supply the procedure. We additionally said:

'The clerk of this court is, ex officio, clerk of the Appellate Court. § 4--228, Burns' 1933, Sec. 1375, Baldwin's 1934. As such he has custody of the records in cases disposed of by the Appellate Court. It is not the policy of the law to require unnecessary things to be done, and no writ of certiorari or other formal proceedings are required to enable this court to gain access to such records. When a proper showing is made in and as a part of the petition to transfer that the Appellate Court has failed to consider and pass upon a substantial question duly presented to it, this court will examine the record, papers, and briefs in the same manner and to the same extent as if these had been brought up by a writ of error. The particularity with which such a showing should be made was suggested in the case of State ex rel. Daily v. Kime (213 Ind. 1, 11 N.E.2d 140), supra. By this means the right of litigants to have their appeals fully and finally considered by the court of last resort will be amply protected.

'It follows from what has been said that this appellant may not be denied his right to present his case to this court for review because the Legislature has not provided a means for bringing it here. But since the statutory procedure for transferring cases from that court to this was intended as a substitute for the writ of error in cases to which it was made applicable, there is no reason why this court cannot adopt and utilize that procedure in the case at bar. It would be less confusing to the courts and lawyers to permit this to be done than to undertake to establish a special procedure for such situations by rule of court. The name given to a proceeding for review is not controlling nor important; the substance of the right is the vital thing. To call a writ of error an appeal, or an application for certiorari a petition to transfer does no violence to substantive rights. The appellant's petition to transfer, treated as performing the functions of a petition for a writ of error; is sufficient to present the case to us. It has been so considered and we have examined the record.'

See also: Curless v. Watson (1913), 180 Ind. 86, 102 N.E. 497 to the same effect.

The reasoning of the foregoing cases is compelling and in our opinion cannot be refuted. The statutory apparatus known as the petition to transfer from the Appellate Court to the Supreme Court in reality operates a writ of certiorari for review of action of a lower court.

We hold therefore that where the statute or rules of this Court fail to provide for a review of the decision of the Appellate Court, which decision could be reviewed under the old common law writ of certiorari, the Supreme Court of this state may consider a petition to transfer as a writ of certiorari at common law. In such a case this Court need not be limited to the items or grounds specified in the rule or in the statute. The action of this Court is based upon its inherent constitutional duty to act as the final and ultimate authority in stating what the law in this state is.

We therefore grant the petition to transfer and will consider it in substance as one here on writ of certiorari for review. We point out that to come to any other conclusion would result in the inability of this Court the highest court in the state, to change any ruling precedent, however erroneous, once the appeal was terminated in the Appellate Court, for there would be no basis upon which we could review, reevaluate and update our own pronouncements. This would result in the anomalous situation of the Appellate Court being the only court that could overturn our precedents.

We now proceed to consider the question on the merits as to whether or not a wife may recover for loss of consortium of her husband in this state. The complaint in this case alleged in substance that the husband was severely injured in an automobile accident by reason of the alleged negligence of the defendant-appellee Marker; that as a result of the accident, appellant's husband was hospitalized for 159 days during which time he underwent surgery 7 times; that after being released, he returned to the hospital 4 more times for corrective surgery necessitated by his injuries; that as a result the plaintiff was compelled to find employment, taking her away from her two children and preventing her from maintaining and looking after the home for her family; that she underwent mental anguish as a result of the changed situation following the injury of her husband, which impaired her health; that she lost his protection, consideration and companionship and his help and services about the home, including escorting her and driving her to places which required her attendance. There was an allegation of monetary damages. To this paragraph of complaint the trial court sustained a demurrer. The appellant refused to plead further and judgment was entered against the appellant. This action was affirmed by the Appellate Court. The trial court and the Appellate Court apparently followed certain precedent in this state in arriving at their decision. For such action we can only commend the lower courts. Yet we, as members of the highest court of this state, at infrequent intervals have occasion to reconsider some doctrines and trends of the common law of this state which, due to the passage of time and social changes, are subject to attack as being outmoded.

In this case we are dealing with a principle or doctrine of law that has its origin in an archaic time, when a wife was more a servant than a companion and partner. This principle of law, which denied the wife the right to sue, had its origin in what is known as coverture of a married woman, which limited her legal capacity to sue or assert her rights as an individual. As Blackstone at that time said:

'But though our law in general considers man and wife as one person, yet there are some instances in which she is...