*1 1090) (576 P.2d 49,106 No.
Glyn (Plaintiff), Appellee, Vernon L. Dean Albertson Travis
(Defendant), Appellee. (Intervenor), Appel- Sara Albertson lant.
Opinion filed March 1978. Wendelken, Gripp, Crockett, Wichita, David A. Cline & for the inter- venor-appellant. Cordry, Michaud, Cranmer, Post, Wichita, Syrios D. Bichard & for the plaintiff-appellee, Glyn Dean Albertson. Hiebsch, Hiebsch, Tinker, E. Frank Bobbins and Kenneth H. & Robbins Wichita, defendant-appellee, for the Vernon L. Travis. Spencer Rees, P.J., Before Parks, JJ. Appellant, Albertson, Sara seeks to intervene in a Parks, J.:
personal injury husband, brought Glyn suit Dean Albert- son, and to file a cross-claim him for failure assert a claim in her behalf for loss of consortium. Her motion was denied appeals Although and she from that order. the Albertsons are now divorced, identify we continue to them as husband and wife appeal during because this relates to events which occurred their marriage.
Appellees Glyn are Dean defendant in the Albertson personal suit, Vernon L. Travis. processed, appeal
While being this was the trial court entered ap- plaintiff Subsequently, judgment favor of husband. pellee appeal being Travis filed a motion to dismiss this as moot. 60-2102(o)(4), deny- His motion is denied. Under K.S.A. an order application ing appealable intervene an an order. Here timely appeal from a final order of the district court was filed this before appellant. conclude that her We *2 Wade, 537, 502 v. 210 Kan. Campbell Legion American (1972). the statement concerning question has been raised A also have determined pursuant Rule No. 3.04. We proceedings filed to its be heard on merits. the should that the of this case the whether under facts We will first consider assert a claim for her fails or refuses to wife whose husband injury demanding dam- personal a suit may intervene in benefit ages for loss consortium. personal in- Glyn Albertson sustained
On December ability juries the or of his allegedly which caused statute, controlling perform services his wife. then for 23-205, provision a dam- for husband recover made no K.S.A. his ages for the benefit of wife. for loss consortium Supreme expressly Court had years earlier the Kansas Eleven a wife cause of giving common law the refused to extend the injury by negligent to her consortium caused action for loss of no acknowledged that the wife had cause of husband. The court and that the enact- law for loss action at common 23-205) (K.S.A. a cause give statute did not her ment of the Kansas, have at common law. In the action which she did not or father damage negligent to a husband entire in cases of him, and a settlement always centering been considered as has always closing recognized as the incident. with him has been (1964). Dautel, 406, 388 P.2d 192 Kan. Hoffman decision, the court concluded: rendering In its problems pre- legislature can best deal with the “[T]he rather than the courts type desirable, example, legislature, if be it found this of suit to sented. For liability, may designate maintain the as it the extent of the who action could define 1949, 23-205), injured (G.S. negligently did in the where the wife is situation requirement provide danger recovery, safeguards against as a of double such injured joinder person directly consequentially and the one that there be proceeds belong legislature specify should harmed. The also whether could spouses. plaintiff Clarification statute as both the alone or both course, would, preferable piecemeal determination and the wife be Dautel, 422.) supra p. problems by judicial (Hoffman v. at decision.” added.) (Emphasis 6,1975, appellant of action wife had no cause On December authority duty had or and her husband for loss of consortium Accordingly, we hold damages such benefit. recover appellant’s that motion to intervene was denied. question We now turn to the of whether the 1976 amendment applied retrospectively K.S.A. 23-205 should be permit appellant’s view, In intervention. it' should not. Dautel, supra, years Twelve after year and one after Hoffman sustained, in the instant legislature case were by extending
amended K.S.A. 23-205 of action to recover damages husband, thereunder for the benefit of his wife. Supreme long
Our
Court has
adhered to the rule that
statute
operate prospectively
will
retrospectively
rather than
unless its
clearly
language
the legislature
indicates that
intended the latter.
Inc.,
v. Hoffman-LaRoche,
Eakes
220 Kan.
Motors,
Seybolt
See
109 N.H.
256 A.2d
Bromfield
(1969); Berry Myrick,
(1973);
260 S.C.
Burroughs
418,
224
(1970),
Tenn.
Appellant’s cross-claim properly her husband was dis- imposed duty upon missed because the law no him assert in her behalf a nonexistent claim for of consortium. question constitutionality pre-1976
The of the of the version of K.S.A. 23-205 is not before this court. The record and oral argument counsel’s statement at disclose that this issue was not raised in the It trial court. is well settled that an issue presented for the first time on by will not be considered an Shutts, Phillips Co., Executor v. appellate Petroleum 222 527, 554, Kan.
Affirmed.
Spencer, J., concurring
dissenting:
respect,
opinion
With all due
I must dissent
from the
of the
majority,
appears to
to be
which
me
discrimination based on sex.
prefer
what was
in
subscribe to
referred
as the modern rule
Co., Inc.,
(D.C.
1950),
Argonne
denied, 95 L.Ed. 71 340 U.S. Coles, 242 F.2d Company, Inc. point in Smither and another on denied, 1957), U.S. 1 L.Ed.2d (D.C. 354 Cir. cert. 220 (1957): 1299 S.Ct. consortium, injury which is the the wife from loss of . . “. ‘The actual action, to the husband from that cause. same as actual of the is the basis greater right society conjugal wife than her of his His to the rights society Marriage gives in that conjugal each the same of her husband. comfort, companionship, other. regard. and affection of the to the Each is entitled spring obligations marriage rights and the of the other from the one character, contract, as husband and in and attach to are mutual rights, Any husband or with these whether wife. wife as interference violation, only arising right, legal right wife, also out natural but is a not ” (183 816.) marriage . . . F.2d at relation exclusively upon majority is almost based The decision of Dautel, extremely opinion in well-reasoned Hoffman (1964), now written Chief Kan. Justice Schroeder, did refuse extend the common wherein the court by giving wife a cause of action for loss or law However, injury to negligent caused her husband. so, doing in it was also noted: static, proposition that law not is committed to the the common “Our court perma- vitality capacity grow. and a It with never becomes
but is endowed developments crystalized changes adjusts nently time from to time new but changing complex in life to meet the needs of a soci- social and economic 414.) (192 ety . . . .” Kan. at was, time, at the in accord with the The decision Hoffman states, position adopted by majority but that situation is *4 longer thorough true. For a discussion of what has been authority” in of and weight referred as “dramatic reversal the enactment, legislative v. Rodriguez the need to await see Bethle Corp., 382, 115 765, Rptr. hem 12 Cal. 3d Cal. 525 P.2d Steel 669 (1974). only jurisdictions in There it was noted that 1958 five recognized right the of the wife to the of recover for loss consor tium, grown but that since that time the number had at least twenty-six thirty-one, change in of which the brought was about also, Consortium, by judicial 14 Right decision. See Wife’s (Second), (1975); p. Wash. 309 Restatement Torts § L.J. provide: has been modified to which since Hoffman by spouse is illness “One who reason of his tortious conduct liable to one for or bodily subject liability spouse resulting the for other harm is other of
157
society
spouse, including impairment
capacity
of the
services
first
of
for
sexual
.
intercourse
.
.
agree
majority
I
with
operate prospec-
that a
is
statute
tively
retrospectively,
rather
than
clearly
unless
language
its
legislature
indicates
that the
However,
intended the
it
latter.
is
suggested that
the 1976 amendment
merely
K.S.A. 23-205
what
codified
had come to be the common law
well
of this state
by
plaintiff and,
time,
before the
sustained
at that
law
in
recognize
common
did
fact
a cause of action in the
husband
the benefit of his wife for loss or
of
resulting
from the
by
tortious
of the
party.
third
I suggest
Supreme
also that had our Kansas
Court
considered this matter in
such
1975
would have
holding.
been the
City Manhattan,
See
Fritzson v.
215 Kan.
With a
of the wife’s
all
elements
intervene,
governing
timely
the right
application,
i.e.
a sub-
interest,
adequate representation
stantial
and lack of
of her inter-
ests, appear
to exist. American States Ins.
Co.
Ac-
Hartford
Co.,
563, 573,
Indemnity
(1976).
cident &
Kan.
218