Troue v. Marker

Decision Date15 July 1969
Docket NumberNo. 468A59,No. 2,468A59,2
Citation249 N.E.2d 512,145 Ind.App. 111,18 Ind.Dec. 200
PartiesElizabeth M. TROUE, Appellant, v. Franklin MARKER, Appellee
CourtIndiana Appellate Court

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

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

HOFFMAN, Judge.

The issue presented by this appeal is whether or not the doctrine of denying a wife a recognized cause of action for loss of the consortium of her husband should be abrogated or sustained.

Appellant's husband was severely injured in an automobile accident precipitated by the allegedly negligent driving of defendant-appellee, Franklin Marker. Appellant alleged in her complaint that as a result of the accident her husband was hospitalized for 159 days during which time he underwent surgery seven times; and that after being released he returned to the hospital four more times for corrective surgery necessitated by his injuries.

As a result of these injuries and hospitalization, plaintiff-appellant alleged damages in her complaint in rhetorical paragraphs 4, 5 and 6, as follows:

'4. As a result of the foregoing it has been necessary for Plaintiff to take a job, thus taking her away from her two children, and preventing her from maintaining the home for her family as she had been used to in the past. As a further and proximate result of said negligence of Defendant, Plaintiff has undergone mental anguish by being forced to witness the suffering and inactivity endured by her husband, whereby her own nerves and health have been seriously weakened and impaired, and by reason of the physical condition of her husband, she still continues to suffer in mind and body and has been denied the care, protection, consideration, companionship, aid and society of her husband, and the pleasure and assistance of her husband of escorting her to visit friends and relatives, and has been required to remain at home or at her job for long periods of time, denying herself to friends and relatives.

'5. By reason of the said injuries, Plaintiff's husband, Roemer H. Troue, was unable to work and to follow his usual vocation, and thereby since the first day of October, 1965, to the present time, has lost wages from which Plaintiff and her family would otherwise have derived benefits, in (the) sum of Twelve Thousand Seven Hundred Twenty-Four ($12,724.00) Dollars, and will permanently continue so to lose income because of said injuries; to offset such lost income, Plaintiff and her family were for a time forced to apply for welfare payments, which was extremely embarrassing to Plaintiff and her family, and thereafter, Plaintiff's income was supplemented by social security payments by reason of the disability of her said husband. Plaintiff's income during this period was Three Hundred ($300.00) Dollars during calendar year 1965; Three Thousand Seven Hundred Forty-Five ($3,745.00) Dollars during calendar year 1966, and is anticipated to be Four Thousand Two Hundred Thirty-Three ($4,233.00) Dollars, during calendar year 1967.

'6. In addition thereto, Plaintiff's husband has incurred medical expenses in the approximate sum of Ten Thousand ($10,000.00) Dollars, over and above that which has been covered by insurance, and will continue to incur medical bills and expenses, thereby reducing that portion of his income which could otherwise be devoted to Plaintiff and her children.'

Defendant-appellee filed an amended demurrer to the complaint on two grounds: 1) That the complaint does not state facts sufficient to constitute a cause of action and 2) That the plaintiff has no legal capacity to sue.

The trial court sustained the amended demurrer as to specification one and overruled it as to specification two. Plaintiff-appellant refused to plead over and judgment was thereafter entered on the demurrer. This appeal followed.

Appellant has assigned three specifications of error, as follows:

'1. The Court erred in sustaining the demurrer of Appellee to Appellant's complaint.

'2. Decision of the court is contrary to law.

'3. The court denied Appellant the equal protection of the law and due process of law guaranteed her by the United States Constitution and applied to the States by the Fourteenth Amendment as well as deny her the due course of law and administration of justice and equal privileges guaranteed her by the Constitution of the State of Indiana.'

The question in this appeal has been presented to us in singular form. Our consideration is limited, in effect, to an examination of the power and scope of the judicial prerogatives granted to this court by the General Assembly and our Supreme Court. This is so, because, as the appellant readily admits, the ruling precedents are contra to her position.

The exact same issue was presented to this court in Miller v. Sparks, 136 Ind.App. 148, 189 N.E.2d 720 (1964), (Transfer denied). Judge Cooper, speaking for this court, in that case, at page 152, 189 N.E.2d at page 722, stated:

'The writer of this opinion is inclined to agree with the thought expressed by Judge Gilkison that the consortium rights of one spouse should be co-extensive with the consortium rights of the other. However, it appears that the majority members of the Supreme Court did not agree with this idea and supported the doctrine as announced in Boden v. Del-Mar Garage, supra. (205 Ind. 59, 185 N.E. 860 (1933)). We are bound by the decisions of our Supreme Court, and the doctrine they announced in the Boden case, supra, is binding upon us until the same is changed, either by the Supreme Court or legislative enactment. See In re Petitions to Transfer Appeals, etc. (1930), 202 Ind. 365, 174 N.E. 812. At p. 376, of 202 Ind. at p. 817 of 174 N.E. supra, we find the following statement of the Supreme Court: 'The decisions of the Supreme Court are precedents binding upon the Appellate Court'.'

In Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E. 860 (1933), our Supreme Court discussed at length the denial of a cause of action by the wife for the loss of consortium of her husband and concluded that such denial was not in violation of either State or Federal Constitutions.

In the more recent case of McDaniel v. McDaniel, 245 Ind. 551, at page 558, 201 N.E.2d, 215, at page 218 (1964), our Supreme Court reaffirmed this line of authority when it cited Miller v. Sparks, supra, favorably on the point in question:

'(A) wife is denied the right to bring a separate action for her husband's injuries resulting in his loss of earnings. It is therefore considered, in an action for personal injury (not resulting in death), that her damages for loss of earnings are merged with those of her husband. Burk v. Anderson et al. etc. (1953), 232 Ind. 77, 109 N.E.2d 407; Brown v. Kistleman (1912), 177 Ind. 692, 98 N.E. 631, 40 L.R.A., N.S., 236; Miller v. Sparks (1963), (136) Ind.App. (148), 189 N.E.2d 720.'

There is no way to misconstrue the direction of these precedents. The pattern is clear and as Judge Cooper noted earlier in Miller, we are bound until the Supreme Court or our General Assembly makes a change.

Decisions of our Supreme Court are binding on this court. Stout v. Stout, Admr., 68 Ind.App. 278, 282, 114 N.E. 473, 131 N.E. 245 (1918), (Transfer denied). Appellant suggests that the recent case of Harris v. Young Women's Christian Association, Ind., 237 N.E.2d 242 (1968), has abrogated this well-recognized standard of appellate procedure. Our Supreme Court has yet to speak specifically and expressly on the issue except to reaffirm the existence of the standards set for this court to follow. As was recently stated by the United States Court of Appeals for the 7th Circuit in Miskunas v. Union Carbide Corporation, 399 F.2d 847, at page 849 (7th Cir., 1968),

'(W)e would not be warranted in speculating that the Indiana Supreme Court will allow a recovery by a wife for loss of consortium resulting from a negligent injury to her husband, when again presented with that question.'

This court may not make such a speculation either.

There is currently much discussion and concern about the status and power of the judicial branch of government. The appellant would have us side with those who espouse the philosophy that the court should abandon stare decisis and the rule of precedent when, in its opinion, there is a social or political need for change. While we agree that an appellate court must be conservatively responsive to accepted legal trends, we cannot agree that the courts should in any respect presume to be a barometer of public opinion or the weathervane of social change. Separation of powers is a well-founded governmental concept, and this court has always guarded such separation.

It is conceivable that the traditional concept of judicial review may evolve into something other than what it is today. It is obviously undergoing change. However, it is for the Legislature or the Supreme Court to establish the procedures for such change. We are here to interpret the law and to lay down guidelines by which the lawyers and the trial courts of this State can make determinations on which they can depend. It would be an ill-fated system of jurisprudence where the law was only as dependable as the most current advance sheet.

For the foregoing reasons, the judgment of the trial court must be affirmed.

Judgment affirmed. Costs taxed against appellant.

PFAFF, C. J., concurs.

WHITE, J., concurs in result, with opinion.

SHARP, J., dissents, with opinion.

WHITE, Judge, (concurring).

This is the type of case in which rhetoric flows easily. I shall attempt to add as few words as possible.

I agree with much that is said in both the majority opinion and in the dissent. In Galbreath v. City of Indianapolis, Ind.App., 248 N.E.2d 553, (1969), I found myself in disagreement with a decision resting, in my view, almost wholly on stare decisis....

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