*851 MEMORANDUM DECISION
In this action for loss of consortium, the plaintiff, Fernande C. Bitsos, has moved to strike paragraphs V and VI of the defendant’s, Red Owl Stores, Inc., answer. Jurisdiction is based upon diversity of citizenship and the requisite amount in controversy.
A brief chronology of the events as stipulated to by both counsel is necessary before reaching the substance of the plaintiff’s motion.
August 18, 1968 — Anthony (Tony) Bitsos, plaintiff’s husband, while in the Yankton, South Dakota, Red Owl Store to repair air conditioning and refrigeration equipment, allegedly incurs damages from a fall on the store’s basement stairs.
September 5, 1969 — Mr. Bitsos sued Red Owl Stores, Inc., for personal injuries. A jury verdict in favor of Mr. Bitsos was rendered on March 25, 1972, aff’d.,
May 17, 1971 — Mr. Bitsos files for divorce.
June 29, 1971 — Mrs. Fernande C. Bitsos files an answer and counterclaim for divorce.
August 12, 1971 — Mrs. Bitsos sues Red Owl Stores, Inc., for loss of consortium arising out of the August 18, 1968, incident.
It is the plaintiff’s contention that paragraphs V and VI of defendant’s answer are immaterial to her loss of consortium claim because the issues relating to defendant’s negligence are res judicata, having been determined against Red Owl in previous litigation by her estranged husband, Tony.
The defendant argues that the principle of res judicata is applicable only between the same parties and their privies. Therefore, inasmuch as Mrs. Bitsos was not a party to Mr. Bitsos’ suit and is not in privity to either party of that suit, the negligence issue must be litigated anew in Mrs. Bitsos’ consortium action. The question presented, then, is whether or not the jury verdict finding the defendant, .Red Owl, negligent in the husband’s suit is binding upon Red Owl in the wife’s subsequent suit for loss of consortium, or, in other words, is Mrs. Bitsos in privity with her husband.
Because this is a federal diversity case, South Dakota law is controlling. Erie R. Co. v. Tompkins,
Counsel has referred me to the annotations beginning at
The South Dakota Supreme Court has recognized the right of a wife to recover damages for loss of consortium resulting from the negligent injury to her husband because of negligent acts or omissions of a third party. Hoekstra v. Helgeland,
Recently the South Dakota Supreme Court expressed its opinion relative to a procedural aspect of a wife’s consortium suit. In the closing paragraph of Wilson v. Hasvold,
As an action for loss of consortium is derivative in nature it should also be combined for trial with the injured spouse’s action in order to avoid the danger of double recovery and the expense of duplicate trials, (cases omitted.) (emphasis added).
This court relies heavily upon the word “derivative” in concluding that Mrs. Bitsos is in privity with Mr. Bitsos and, therefore, plaintiff’s motion to strike paragraphs V and VI of the answer is granted. The characterization of the loss of consortium action as “derivative” is fairly clear. Any doubts are overcome by a dictionary definition of that term.
DERIVATIVE. Coming from another; taken from something preceding; secondary; that which has not its origin in itself, but owes its existence to something foregoing. Anything obtained or deduced from another. State v. [Wong] Fong,75 Mont. 81 ,241 P. 1072 . Black’s Law Dictionary 530 (4th ed. 1957).
While the right of a wife to the consortium of her husband is one of her personal rights, Swanson v. Ball,
A wife will be concluded by a judgment in an action for or against her husband with respect to any right or interest which she claims through or under him; and so likewise will a husband be concluded by a judgment for or against the wife in respect of a right or interest which he claims through or under her. 50 C.J.S. Judgments § 798; see also Sisemore v. Neal,236 Ark. 574 ,367 S.W.2d 417 ,12 A.L.R.3d 929 (1963).
The South Dakota court having declared the wife’s consortium action to be derivative of the husband’s action, this court does not hesitate to find, as the next step in a logical progression, that for the wife’s right to sue for the loss of society, companionship, conjugal affections and assistance of her husband, there must be an actionable wrong against a negligent third party.
The husband will base his claims upon the identical factual circumstances that the wife will ultimately use for her suit. Once those facts have been litigated and a final determination as to the defendant’s liability made, it would be duplicitous to retry the facts in a second derivative action. If the husband is unsuccessful in his initial suit on the facts, the wife’s subsequent action could add nothing to facts previously found lacking compensable negligence. The wife’s cause of action being bom of the husband’s actionable loss is controlled by its fate. The wife’s cause of action must rise or fall upon the success or failure of her husband’s cause of action.
I recognize that the characterization of the wife’s loss of consortium action as “derivative” places South Dakota in the minority. Annot.,
We conclude that the trial court correctly interpreted the law of Arkansas and that the appellant Kelsie Tollett’s claim must fall with that of his wife. It may be noted that this comports with the decisions of other jurisdictions that the husband’s right to special damages for medical expenses or loss of consortium is derivative and depends upon the wife’s successful suit for damages. Sisemore v. Neal,367 S.W.2d 417 , 418,12 A.L.R.3d 929 , 931.
Privity having been found between Mrs. Bitsos and a party to the initial suit against Red Owl, the principle of res judicata applies and liability need not be relitigated in the derivative action of Mrs. Bitsos. The court is left only with the damage aspects of her claim. That matter will come on for trial before the court as stipulated by both counsel, on Monday, December 4, 1972, at 9:30 a. m., at the Federal Courthouse in Sioux Falls, South Dakota.