Novak v. Kansas City Transit, Inc.

W.2d here called 774.” Under the circumstances violation of the law was 546.240, shown, in we find nothing whatever to estab- Court’s Section attention.” lish allegations new pertinent part, of'the motion for reads: contrary, period trial. To the the short concluded, argument “When the deliberation tends rather to indicate that jury in court either decide jury was together during its deliberations They may re- retire for deliberation. required by statute. The contention is who, charge an officer tire under the denied. felony, be sworn case of a shall sufficiently The amended information keep private together them in some charges the of which crime defendant was per- place and not convenient room or 560.070; guilty, found the verdict § any person speak or com- mit sufficient in form responsive is- himself, them, municate with nor do so punishment sues. The assessed is within court, ask or to unless order of the provided law, 560.095, limits 556.- §§ agreed them whether 280; judgment is in due form verdict; they have their and when law. court, agreed, he shall return them into court.” when ordered judgment is affirmed. The record does not show whether the All Judges of the of the Division concur was argument sheriff was sworn when the HUNTER, Special Judge, concurs. re- keep jury together concluded to quired by rec- the above section. But the any failure to so

ord also fails to show sheriff, he

swear the if it be the fact that sworn, called to the at-

was not so was ever alleged

tention the court as in the motion of the

for new trial. The first mention allegation refer- shown the record with NOVAK, Appellant, Rita sheriff ence to failure to so swear the v. is the unverified statement the motion TRANSIT, INC., ad- KANSAS CITY new Neither evidence trial. Corporation, Respondent. allegation duced in of the made No. 49233. the motion for new trial. On the other following hand the record does show that Supreme Missouri, Court of cause, the argument jury retired En Banc. begin at room its deliberations March m., p. hour of of 12:25 hour open p. returned into court its 12:55 m. “We, caption): Jury, (omitting

verdict cause, find the de- above-entitled guilty Burglary

fendant the Second

Degree.” Stidham, Mo.,

In State aggravated court said more presented: appel- than here “The

situation prove separation did not offer to

lant jury. Nothing is better settled than allegations unverified in a motion in prove case do not

criminal themselves. Henderson,

State 204 S.

had no or because she was any nied remedy for an invasion thereof. See 4 St. Louis 426. U.L.J. passage the Married Women’s Act in (present Missouri 451.250-451.300 §§ V.A.M.S.), RSMo changed 1959 and women, the status of married in- made it evitable courts need to de- cide whether the husband’s of action to recover for had been eliminated by the Act or whether the his- torical basis rights for the husband’s ignored adopted rights the view always which he equal had had were now rights as between and wife enjoyed thus should also the wife. And so it was that courts of this- state held that the ac- husband’s tion remained even Married' after Women’s Act that he could society by loss of his wife’s reason of Trusty, Marsh, David Fran- S. William party’s to her as a result of third J. Roach, appellant. City, cis L. Kansas negligence, apart Popham, Thompson, & Popham, Trusty loss of her services. Furnish v. Missouri Conway, City, Kansas of counsel. Pac. Co. 102 Mo. (1891), 15 S.W. VanDyke, City,

Harold T. Kansas for re- Linde, Thomson, spondent. Vandyke, And so it was also that this court Clow Langworthy, City, Fairchild & Kansas Chapman (1894), 28 S.W. counsel. 26 L.R.A. was called to de termine correspond “whether a wife a COIL, Commissioner. persons ing against third for the husband, alienation of the affections her petition Rita Novak’s averred her society.” depriving of his passenger while a in an automo- The court the Clow case contrasted bile, negligently injured respondent was respect of a married status woman with deprived had she of his personal rights under the common consortium, including companionship law and under the Married Women’s Act affection, conjugal for which she as it then existed. It was noted that at $100,000 damages. sought common law the existence of a wife Respondent’s summary motion judg- suspended was or consolidated into that of ground ment was sustained during marriage her husband and that cer recover for loss of consortium tain disabilities to the wife followed from party, a third caused principle unity. pointed out appealed. and Mrs. Novak has also that Missouri statutes then in existence law, early provided common other although among things Under that all rights grown action which had husband was for an out of vio impairment (in- or loss the consortium lation of a wife’s should be separate property cluding society) of his services under her sole for the control and that she could her own name society, either because institute and maintain an she action for re wrong remedy a action at common law property covery of such none under question, she has like the one though she were force and effect as blush, is, at the statute law. There femme sole. first upon con argument, some but in the force case in the Clow Significantly, the court ad it no more than sideration we consider law common specifically that at assumed The stat hering technicality. a barren against an action could not maintain wife scope utes, in their full when considered hus- of her depriving her persons third for legal separate purpose, give the wife a existence society legal because her band’s existence, legal exist before her whereas husband her merged into that had been that of merged ence into was considered upon premise marriage. that by the Based husband, and no her and for this reason it issue before the exact the court decided maintain the action. other she could not comprehensive language: in this broad necessarily obligations rights New and new upon effect to be “The then turns case condition, inci changed arise from the as statutes. given to these Women’s] [Married given dents thereto. When she is the sole extent, far large so They disabling to a are personal property, and the control of her husband, and they apply as in terms suit, by right the same her own apply to they enabling in far as are so follow, incident, it must an that she has as entirely dif- They give her an the wife. respect make contracts in right her occupied by that standing ferent not, property, though may the statute such more position is now law. Her at common terms, give right her the to make con law. the civil that a wife under like tracts in relation Full dominion thereto. sus- being existence legal Instead of her power property over her carries with it incorporated pended, and consolidated as property, necessary dispose of as a made to that of her she into personal rights and obli incident. So new relief, separate and in bold with a stand out gations flow to her because of the fact that property, her legal existence as to distinct given distinct she is personal rights; also as to * n * The of this existence. statutes may rights pro- all such she enforce concerning state married women are for name, independently of ceedings in her own remedial, part the most and should con equal- placed upon an her husband. She is give administered so as ef strued and many, ity husband in and indeed with her object purpose. general fect to their most, respects. By marriage force of nothing argument pressed see We contract, are en- husband each wife upon modify our consideration to the result society titled to comfort of expressed.” (Italics before and bracketed other, great one to as an extent as the —the insert, present writer’s.) Chapman, Clow v. other, placed equal- now iAsa wife supra, 28 S.W. 330. respect prop- with her husband in ity rights, erty personal and as a husband emphasize that the court We Clow action, against have his as a third specifically that held reason of wife, person, enticing away his for marriage contract that the husband and against persons action third wife each entitled to the were other’s so- wife * * * away her husband. enticing e., rights equal, that their were ciety, and i. society to the other’s each was entitled insisted on “But behalf de other, extent as the state, and that be- the statutes of this be fendant had out, upon cause the do not confer the wife fore set person away third against enticing rights; rights new had are likewise an action in these statutes mentioned persons law; away third against enticing at common rights which she had removed, husband, specifically rights including are no the ele- disabilities new but of her created, and, the wife’s loss as she had no ment of Further, society. the court (28 clearly hardt case S.W. mani- 329.) erroneous and rejected festly inasmuch argument wrong longer and should fol- no remedy historically wife had lowed. at common law interference with was, majority opin- disclosed that, as the marital relation and inasmuch (two ion judges dissented), the contention create or Married Women’s Act did not of the plaintiff-appellant in that but confer new since it Chapman, had been held in Clow v. disabilities, removed former supra, per- that the Married Women’s Act by rea- did not accede to a of action mitted the wife to recover for the aliena- Thus, son of the in Clow Act. the court the tion affections, of her husband’s it followed said, effect, force that whatever that she had a to maintain an action argument,” there is “historical basis for the “injury case,” sued which this ignore, give we shall for to effect included the alleged loss of her husband’s technicality” (28 to adhere “to a barren care, protection, consideration, aid, and ; 330) personal rights that new flowed S.W. society. to the wife a given because she had been A majority opinion careful review of the and distinct existence in. the Bernhardt case discloses that away that the to sue for the enticing court assigned two reasons for the result husband hers because of first, reached: holding that the in Clow v. comprehensive scope purpose of the Chapman, supra, that a wife could sue Married Women’s Act. person recover from a third for aliena- Later, Nichols, in Nichols v. 147 Mo. tion of her husband’s affections did not re- an S.W. alienation of affections quire, by plaintiff, holding as contended case, the court holding affirmed its in Clow that a wife could recover loss of her and left no doubt as to the meaning thereof society husband’s aas physical result of a by language page this “By 951: law the injury done husband due to a third aid, wife is entitled support, protec- to the party’s negligence; second, possi- tion, comfort, and society bility that if the wife was main- allowed to wrongful deprivation by tain an such action she double thereof receive any person, by whatever means and how- compensation for the damages same ever her husband’s affection be there- person. by affected, she a right against support reason, its first the court person such for so depriving her of these suggested that there is a “fundamental relation; material benefits of the marital difference the rights between of a wife * * (Italics present writer’s.) growing out of a injury to her hus- growing band and those out the aliena- In December 1918 the court en * * * tion of his affections. In the for- Perry, had before it in Bernhardt banc injury physical, mer case the grows A.L.R. physical injury out of done to the question whether a wife hus- could band” and he can which loss of consortium of her for the hus supposed to make him whole and which (we including use as band “so support children, him which, turn, affection, enable his wife ciety,” includes discharge “and to all of his companionship, conjugal marital and rights) as a parental them injury duties due by the same degree of an rea imposed that the law those party. of a third duties of the him son previous injury, leaving held that wife could not no right court maintain theirs, violated, any, if an action and affirmed the judgment fully compensated. in sustaining trial court Such was of the .defendant’s the common * * law; petition. We are *.” 208 S.W. demurrer 465. As we understand, majority sought court distinguish that the view Bern- case, first, negli- that the alienation affections grounds: the actions two gent party committed act a third in this can case was as in the alienation wrong the husband make no That in both against difference. is because against the wife and not separate in- injuries sustained cases the wife has sustained in the case Indeed, recog- aliena- husband; and, secondly, damage. per- deprived proposition by validity nizes the of that affections tion of the husband’s mitting protection, a husband to recover for the loss all wife of while, apparently, society not accom- society, (whether wife’s her of panied might deprive services) a result injury of her husband party’s negli- society. to her due to a third only her gence. Furnish Missouri Pac. be- Now, suggested differences while supra. exist, actions do or could tween the We are of con- convinced that if the loss point out either wherein court does sortium, spouse’s society, which includes a to or decisive relevant difference was turn, encompasses to us question It seems before it. companionship other’s affection and and the was is suggested difference neither each, conjugal rights separate, equal, of is a that in the Clow case It was decided cisive. personal each, right of husband by the loss reason of to the wife wife, recognized this court has has separate a of her husband was society of the held, logical then there can be no or reason- made legal and Clow wrong; and distinct denying able basis for to right the wife a right that of abundantly clear the, recover where the invasion there because the suit had not was another, granting while of her hus- happened the alienation to be for corresponding right husband, fact that because band’s affections or while the wife to recover in an affections were alien- her husband’s when though alienation of affections action even ated, to might a loss in addition sustain she only provable damage might be the loss sup- society, g., e. the loss of the loss of his society. of her husband’s cases decided port. Nichols The Clow dissenting in Bernhardt v. by married woman’s virtue a 467, Perry, supra, convincing is position, right to the changed status answer to defendant’s contention in this equal to society her husband was his though may even be that the could society, and thus that the wife to her contrary suggestion dissent, to did in those fact situations recover therefor not have a to consortium at common could for a husband simi- which the Michigan L.R., p. 1; See 22 law. contra: majority opinion in the Bern- lar loss. Draper, Boyce, Eliason v. (Del.) 77 A. to take into account that hardt case failed Sims, 572, 575; Sims 79 N.J.L. reason the wife could the fundamental L.R.A.,N.S., But A. law in an alienation at common so, if such does detract even or for the loss hus- affections suit dissenting opinion of the because it force party’s society negli- due to a third band’s speculate “probably to anything idle is of her statw. on account gence inferior metaphysical with no ef- so held, conceded, as the Clow case it is Once remedy, obviously when fective the real by Act and the Married Women’s that since position inferior difficulty was the of mar- marriage contract the reason women, feeling they had no ried legally protectible right to her separate complain, standing since to were not affection, society (including his any ‘services’ of the husband.” entitled conjugal and her companionship, Torts, Ed., 2nd p. Ch. Prosser then, the invasion of that whether rights), is the second fallacious reason Equally act a third by intentional is opinion, viz., the Bernhardt by stated as in concurred party permit an action cluding incapacitated, the wife to maintain that for his being for inability for, in her such as the could result protect, to care and associate wife; recovery conclu- damages. That of double his If she were authorized recover, fact sion fails to take into account the wrongdoer the same the dam- .from ages injuries loss for which the wife is entitled she has sustained for the same damages separate which may and distinct and out husband recover for her, by Mar- recovery presumed suffered under the which he is hers, Act, exclusively ried and care her, recovery Women’s then be would * * properly within the is not includable double *.’ his damages the husband should recover “To the same effect is Deshotel Atchi course, that injury. true, It is son, Topeka supra, & Santa Fe pecuniary compensation paid when full wherein it is stated that Cal.2d [50 injuries sus- a husband reason he has P.2d [449] 451]: tained, a wife shares to some extent in “ ‘A judgment obtained a husband aft- certainly benefits she injured person er he a third should not be compensation any impairment include has recov- ability participate in a normal mar- ered in his action. Such result life, and, ried if his wife is allowed redress by delineating avoided accurately the items action, loss of consortium in a properly includable the husband’s dam- danger recovery.’ there of a double ages by permitting the wife in her separate action to recover for the of loss difficulty analyses I “The find with these those elements of consortium is their distinguish injured failure to the particular case, under the facts of repre- husband’s separate, from loss the sent and distinct losses to her. and legally recognized distinct suffered loss As stated in Torts, Ed., Prosser on 2d Ch. by his wife. Take the case of a husband 22, p. 704: “There remains of the course who incapacitating injury suffers an to his important fact that the husband is under the reproductive organs. personal injury In his duty to his so that com- suit it is predi- clear that his pensation for earning power paid loss of to physical cated injury pre- his which goes indirectly her, him to benefit while the copulation, procreation, him cludes wife is under no such corresponding duty. and an enjoyment otherwise full of This must course be taken into in of account However, marital state. the wife’s loss any determination of damages. her But just as real it is can no as distinct. She such elements of damage as loss the of enjoy longer legally sanctioned and society affection, in some morally proper privilege copulation of expenses cases even the to which she has procreation, deprived is otherwise put caring in him, for remain uncom- enjoyment of her full marital state. pensated.” rights, These are his.” Adams, Del.Sup v. in Yonner court Prior to the date of the Bernhardt 717, 728, in discussing the er., 167 A.2d appeals Missouri had denied two courts of recovery a wife a that contention right of a for the the wife recover could of consortium loss for society negligent of her husband due to his damages, double said: allowance injury. C. Terminal Stout v. K. Co. Co., supra, [269 “In Nickel “ <* * Wis. * js 647, N.W.2d 70 entitled to Hardware Mutual argued recover full ^[205] 208]: Casualty com- Bernhardt Inasmuch Gambino Co. (1913), 172 (1913), 175 as the case did Mo.App. Manufacturers’ Coal Mo.App. 653, majority opinion not mention 113, 157 S.W. 158 S.W. 77. those 1019, & Coke cases, sustained, dissenting opinion injuries although dealt he in- all for pensation

545 con- F.2d the court inasmuch 23 A.L.R.2d at 208 them S.W. impression those the results sidered the of first assigned matter as one reasons for authority herein, and, shall unanimity we recognizing the been reviewed cases have logical- toit contrary, proceeded Suffice answer specifically. analyze each ly Bern reasons convincingly reasons the various say that for the same he longer no Perry, which had been courts which supra, should asserted hardt v. courts had followed, opinions question in the two considered and denied cases appeals recovery. cases last above cited See the cited in longer page Hitaffer footnote followed. question stated, Since the our con- Hitaffer decision Although, we have opinion has been The courts in Bern- considered often. majority clusion that the erroneous, deny jurisdictions fifteen continued Perry, supra, clearly hardt v. recovery of that the wife the loss at the time it should be noted that consortium.2 passed opinions in some of opinion jurisdictions which had had cases in unanimously question almost plain denied imply make it and others denied the the wife respective in- view agree courts with the consortium due to the until the wife permitted of her It was not should be husband. but are of the mat- opinion by District further that the the Federal Court legislature.3 ter is one for the District of Columbia 1950 permitted recovery by 4 jurisdictions Eight Michigan, including due of her husband the loss of consortium Illinois, Iowa,, Arkansas, Delaware, South negli- to an reason him of another.1 In Hitaffer v. Dakota, Columbia, Georgia District gence Argonne (Dist. U.S.App.D.C. 183 have Col.), Co. recover. Two D.C.S.D., Except Hipp Dupont F.Supp. 681; De v. E. I. Garrett v. (1954), Tex.Civ.App., (1921), & Reno Co. Nemours Co. Oil N.C. 764; 318, Mullen, S.E. overruled in Hinnant S.W.2d Ash v. which was S.S. Inc. (1925), (1953), 118; 345, v. Tide 189 43 Water Power Co. Wash.2d 261 P.2d 120, early 307, (1955), N.C. Nickel 126 and in an v. Mut. Cas. Co. S.E. Hardware 647, 205; Page Ohio case which 269 Wis. was overruled Smith 70 N.W.2d v. (1962), 516, Bldg. (1915), v. Nicholas Co. Ohio Winter 240 S.C. 126 93 S.E.2d 101, 204, L.R.A.1916E, St. 112 570. N.E. 700. E.G., Ripley Ewell, supra, (1954), 2. Jeune v. E. Const. 3. Del Webb Co. v. 61 So.2d 423; 226, 723; supra, Ariz. 77 269 P.2d v. Garrett v. Reno Oil Deshotel 271 766, 767; Verdigris (1958), & v. A. T. F. 50 S.W.2d Howard S. Co. 664, 449; Valley Co-op. supra, 788; Franzen Elec. 207 Cal.2d 328 P.2d P.2d (1953), Page Winter, supra, v. Zimmerman 381, Colo. v. 126 127 S.E.2d 897; Ripley 256 v. Ewell P.2d 420; (1952), Argonne Fla., (1950), v. 61 So.2d Brown v. F. Hitaffer Co. 183 Montgomery Stephan (1912), 692, 811; (1960), Kistleman 177 Ind. 98 v. 2d 33, 631, L.R.A.N.S., 236; 227; N.E. N.W.2d 40 Cravens Mich. 101 Dini v. 359 (1922), 406, (1960), v. Louisville & N. R. 170 Co. 195 20 Ill.2d Naiditch 881, N.E.2d Ky. 257, 628; 1184; Tank A.L.R.2d Acuff v. Coastal 86 Schmit 480; (1955), 272, 37, (1956), v. Lines Canoles 207 248 78 Md. 113 Iowa N.W.2d 82; A.2d v. & Trans. Co. v. Larocca American Miller Chain Missouri-Pac. N.J.Super. 351, 41; (1952), (1957), Cable Co. 299 23 92 227 Ark. 811; Helgeland (1959), A.2d Kronenbitter v. v. Washburn Hoekstra 78 S.D. (1958), 669; v. Co. 4 Yonner Adams Wire N.Y.2d 176 98 N.W.2d Del.Super., 717; 898; (1961), 167 N.Y.S.2d N.E.2d A.2d 151 Smith v. Georgia-Tennessee Bldg. (1915), Nicholas Co. Coaches Ohio St. Brown 93 Ga.App. 519, 24; 204, L.R.A.1916E, 700; (1953), 112 77 N.E. S.E.2d Valley Coleman, Ga.App. Verdigris (1962), Co-op. Howard v. Elec. Walden 242, 784; (1949), 124 S.E.2d 313. 201 Okl. P.2d (1953), Josewski v. Midland Constructors Federal District decisions5 hold that and that passing problem legis- Court to the Montana highest court of permit Nebraska lature would definition the term permit recovery. All those “consortium” legislature allow overwhelmingly specify cisions array contain an the elements consortium for support their convincing arguments in which damages should be allowed conclusions that has the manner in they computed. the wife should be finally, due And for loss consortium suggested by respondent it is many negligent Carolina, In courts, viz., of her husband. certain North cases, many of those York, of those as in Connecticut, well Massachusetts, and New holding contrary (cited in footnote have held that because no action be 2), opinions. dissenting there were maintained con- loss of sortium, impractical, reasonable regard none should exist in favor of many husband; cases length, to review the “argument denying recovery. (See, equality change of the sexes calls for a 1366.) generally, in A.L.R.2d Annotation overlooks that the to dam- reasons point ages We out that our view for loss is based on out- prior opin- assigned theory,” which had worn thus, been we take it effectively an- recovery respondent denying means, ions were legislature might reasons, swered in the Hitaffer case. Those wish to make the of the husband and noted, equal other than two were heretofore denying both the re- not asserted the Bernhardt cover for loss of consortium. recovery, nor denying case as reasons for we have for decision by respondent. Additional urged question whether the wife should denying recovery reasons for permitted to recover for the loss con- subsequent assigned in cases some sortium her husband under existing con- has been the Hitaffer of those One case. permitted, ditions. If she so posi- urged by respondent of its fact that to so hold cause others tion con- specifically and therefore we shall action, assert causes of g., par- a child e. sider it. ent, is no deny reason to existing wife an Respondent that if contends right of action. Nor does the fact that the calls (respondent to be legislature deny in its wisdom may re- it the creation of a cause action for consortium to both resulting covery) of consortium any apparent wife have bear- injury, function of is the question ing before us. provide legislature right. to Re- spondent’s supporting arguments Respondent’s are that other argument is, many as cases must opinion, inasmuch have in our more substantial. It is true opinion upon settled in reliance in the doctrine of stare decisis is in a permit upon Bernhardt would be unfair to public policy. measure based Conse persons paid money who out in quently, reliance a decision court should not upon exposed that case to be to uncontem- lightly overruled, particularly where, damages plated by for a here, opinion claims wife for the unchanged has remained consortium; that an many instances, loss extension of the years. for In those how of, ever, appears to the wife to recover opinion for loss where it that an questions involves of policy clearly manifestly consortium and and erroneous wrong, the probably open by would the door to applied claims “rule of stare decisis is never bearing a repudiation” others close relationship prevent such a deci R, injured party, parent; such as a child O’Leary or a sion. v. Illinois Terminal Cooney D.C.Neb., (1953), (1961), D.C.Mont., 5. v. Moomaw & erson Supp. Co. 200 F. F.Supp. 448; Duffy Lipsman-Fulk 873, 879[1,2]. LEEDY, JJ., dissent STORCKMAN and banc), (enMo. separate dissenting and concur opinion It harm would seems to us that less EAGER, than Bernhardt overruling J. wife’s from further a withholding due to recover for loss of EAGER, Judge (dissenting).

negligent her husband. injury of myself wholly I find unable to concur Dini v. Supreme Court of Illinois The opinion. opinion principal follows That 881, in Naiditch, 20 Ill .2d 170 N.E.2d admittedly orig- an minority view which an the wife to me, inated in and in of consortium due to loss all im- logic to make it at force page “We jury of said at 892: pelling. theory firmly rejected The legisla abdicating find no wisdom in this Court in Banc in 1918 in Bernhardt v. re-evaluating ture our essential function of Perry, present concepts light common-law apparent 1320,and, except A.L.R. judicial day realities. Nor we find do ac- sire to renovate the new law create continually looking backward sagacity in tions, nothing suggest a total turn- I see analyses of words and parroting the desirable. now, about to make such action posterity other so as to embalm for courts concepts past.” practical matter, we know that sub- As stantially all such suits would wives overwhelming fact The all-pervading subsequent separate and suits filed as concept the inferior status hope greater damages would repudiated totally and for has been joined than if with the husbands’ suits. denial perpetuate erroneous this court to matter, Further, practical as a it would be repudi- upon of a of wife based prevent impossible virtually substantial concept early common-law ated duplication overlapping to be ground wrong if that manifest The two suits. loss “consortium” legisla- by the righted, it must be so done best, is, vague been and and nebulous ture, improper be an avoidance any possible thing; judicial our “Decisions founded function. injuries upon would be the identical based assumption inequality bygone fully for which the husband had recovered. present-day real- unrelated to were [are] presumably his suit he would pre- ought not to be ities, physical injuries and dis- Cardozo, scribe a rule Growth of life.” ability, pain, physical suffering, mental Law, 105, (and consequent earnings loss or ability wife), lessening of his judgment and the case re- reversed ability but the loss of his to consort also for manded. normally with his associate expenses, past, all future. PER CURIAM. proved keep most has heretofore difficult to of these the submission all elements reason- opinion by COIL, C., foregoing The ably in one straight, majori- even case. The opinion adopted of court en Banc. as the the recovery that ty asserts damages could be “avoided double J., DALTON, WESTHUES, C. accurately the items lineating properly in- HYDE, JJ., HOLLINGSWORTH husband’s damages cludable concur. separate wife in her permitting the action those elements separate opinion EAGER, under the facts of J., dissents of consortium case, represent separate particular and dis- filed. 548

tinct losses A to her.” reference to some of any recovery for loss of services petition gives the items damages Thus, in the wrongful consortium. death some this contemplates indication of how unrealistic action pecuniary injury specific statement alleged is. After reciting benefit as basis action. injuries nearly V.A.M.S.; two covering the husband Section 537.090, RSMo pages transcript, petition alleges Shaver, Wente v. 169S.W.2d plaintiff [6], 1176; has and will be been A.L.R. Szofran “deprived and Century future Mo.App., the consortium Electric 255 S.W.2d love hus- support Mo., and affection [10]; Moody, Wilt v. * * * ; “prior injury band” that [5,6]. to his The Workmen’s entirely dependent upon Compensation Law, him for sup- she was largely life”; planted cases, and the necessities master and servant physical provides fixed, her husband has reduced to “a pecuniary re- schedules of wreck”; psychological covery. 287.240, she 287.200, 287.190, Sections deprived conjugal and will “be of normal RSMo if, per- And V.A.M.S. society chance, affection and of his comfort and legislature should choose to en- companionship”; and act compensation and of his aid and other law or laws replace required fields, care existing will “be to tend and she tort actions other provide him it does appear for him and likely to nurse it would provide manage- damages and to undertake his share of for loss family upbringing of services. overburdening ment of their The of our existing personal able judge injury their children.” The who is actions fringe with “accurately damages by day double hasten to avoid when the benefits legislature Adequate would so delineating” the items that act. com- pensation can or will recover in another action be obtained recovered within the framework existing correctly court, in another instruct actions. If the properly re- extended jury damages on the items in a this, lawsuit such as particular will in- can coverable in we see reason- able Solomon, ground for not granting eventually wisdom of a deed need the perhaps children and parents mention utter confusion of or others similarly situated. juries. The reason for these difficul- dealing mostly ties is that we are with The Married simply gave Women’s Act1 intangibles gray areas that are to a legal existence; black nor neither white and in which the largely imaginary gave of demarcation is line sue for and control difficult to draw even for the trained her real and property, contract difficulty mind. cannot be respect thereto, and thus to have a by passing on to the avoided such right person- action for “violation of her and unfamiliar terms vague as “consor- rights.” Generally, al the Act did not create tium”, “conjugal rights”, “conjugal new causes or merely but While affections”. married released women of restrictions injury cases cannot be measured fixed imposed. which the common law had It is specula- standards, should not rest on my that such a view of action as is conjecture. policy tion and of the law sought not one here based damage to restrict items of those which personal rights of the wife and that be measured rather definitely by can supported by it is not the Married Women’s money value rather than to enlarge on them. emancipation Act. The women observe, as we been able so far have to Women’s Act from Married the domination legislature has it has ownership husbands, acted and virtual of their where 451.250-451.300, 1959,

1. Now Sections RSMo V.A.M.S.

549 couple recover and abolition of the ried could be trusted effectively argues to existing damage in the share the items in which right now of action joint have a common interest. longer her or her services or Con- for he no owns somewhat earnings and the idea is sortium seems be a of the times or her to relic when only the husband was to considered archaic. right and his extending right to Instead of require both. To court and to consider consortium, this court apportion divide and right asking is it right where limiting abolishing them to do which something is next to exhaustively exists. need not consider We impossible wholly unnecessary, since Act and the effect of the Married Women’s spouse may each now sue for his emancipation of complete the trend physical injuries adequate and recover dam- economically, but socially women both ages in such action. The recent case of readily apparent indicate is enough Co., Croker v. Consolidated Service Car gave the reasons which rise to common- Mo., 11, 365 S.W.2d 524 (decided February example, longer law action no exist. For 1963) complexities illustrates decided that arise under Act, our Married Women’s for loss common-law even as heretofore construed. Our efforts resulting services and consortium wife’s should be devoted avoiding conflicting employer’s negligence and overlapping rather than creating claims Compensa extinguished by the Workmen’s more of them. tion Act where the wife has received com

pensation. 287.090, 287.020, Sections 287.- The alienation of affection cases cited in V.A.M.S.; 1959, 287.120, 110 and RSMo majority opinion particular are of no Co., 857, Holder v. Elms Hotel Mo. 338 92 consequence in this case. An alienation 620, 339; 4],& S.W.2d A.L.R. [3 case is an intentional affections Sharp Producers’ v. Produce 226 Mo. Schmidt, Mo., tort. willful Sandler App. [3, 47 S.W.2d 35, 38 an action is 4]. Such one [4]. case Holder decides that the de wife; further upon a direct based struction of of action is not un tacked on to a one of action constitutional. resting solely in the husband for his own injuries. anxiety Mental distress and can just logical say It is that the Mar generally be the tort recovered where ried Women’s Act abolished the husband’s intentional, simple but not in a willful right to sue for loss of and con services person suing unless the case sortium where wife has sued and re Then, physical injuries. has also suffered compensation in negligence covered too, an alienation does not damages. identical related items problem dividing damages for con- By statute the of Kansas State has ex sortium, possibility of double re- pressly provided of action covery. ability a wife’s loss recover for Naiditch, vest perform solely services "shall in her” in Dini v. 20 Ill.2d recovery, that her in so far N.E.2d from which the ma impairment quotes exhortation, loss or jority opinion based ac perform ability tually services house demonstrates real lack of reason discharge and in of her domestic action for hold con duties, dissenting shall be for the benefit her hus As one judge sortium. said three) “It “so far as he shall be entitled : more (there band there were than Kansas, 23-205; G.S.1949, accident the husband’s to.” Cornett an historical Neodesha, City of 187 Kan. 353 P.2d action survived enactment common-law Act.” It would seem that a mar- of the Married Women’s 170 N.E.2d 977 [2]. ground. the Married If the do not use their 893. If reason of courts loc. cit. powers power simplify expedite procedures and court has the Women’s Act the cases, disposition have action, also a cause of it must are invit- create spouse require injured ing legislative the that the branch so. If the to do resulting any change, court makes it should be recover for all the services, way or both. of extinguishing or the husband’s loss of consortium action for distinc and loss day long past since where of services. The produce This equality. present that a basis The could be made on the tions procedures only adequate furnish the home and place the means for woman’s compensation Today’s injury spouse. to either elsewhere. the husband worked and housework help husbands with the rule, The existing a wife has no and employment in business wives take action for loss of her husband’s lawyer industry. Every has heard trial society, recognized throughout has been injury that the testimony suits judicial history the of Missouri. When casualty adversely affected not questioned in it was reaffirmed. It injured spouse vigor physical of the has become a policy, matter of and state attitude toward also his or her mental but legislature has never seen fit inter- spouse and the the other children. vene. A change in this rule now would en plaintiff in such an action should be inevitably litigation, loosen a flood of duty trusted with eventually rights would un- joint indistinguishable items of or doubtedly children, parents, be accorded to damage. and other primarily relatives. is not duty function of the courts to create agree the statement cannot with We do, new They of action. in aid of majority opinion that Bernhardt v. of the the normal progress law, of the common “is Perry, Mo. S.W. power recognize necessity have manifestly wrong clearly erroneous change and move necessity, with the longer followed.” The Bern- should that power but is and should be used with 1918, ap- in December decided hardt great restraint. If such a radical change carefully thoroughly con- pears to to be proposed made as is here, it should issues and the does not sidered legislature. be made Thus, if such matter of fact material law or disclose created, terms and conditions misinterpreted. was overlooked could be laid down which might make it disagrees opinion in workable, instance, more as for joining upon strongly and relies result with both causes of action in one suit and affection cases. The same alienation specifically more defining the nebulous basis affection cases were con- alienation grounds recovery. And already distinguished in the Bernhardt sidered expounded, legislature might also wish why additional reasons There case. long, take a hard look at existing distinguishable, cases are alienation rights of action of husbands for loss of the previously have been noted. some of services, society, aid, comfort and con- agree the Bernhardt deci- cannot We sortium their wives in the event of certainly “clearly wrong, it is not sion injury to the wife. manifestly wrong”. The erroneous adoption majority the final Upon proceed caution and certain; least one will be opinion, in overruling restraint established exercise Missouri long-suffering holders of lia- cases, especially creating new causes policies pay will insurance still bility more damage items action or upon already them and days bureaucracy premiums; these suits. courts fall greatest will by administrative overburdened of determination idea. of this fallacious dangerous grief treading we are procedure,

Case Details

Case Name: Novak v. Kansas City Transit, Inc.

Court Name: Supreme Court of Missouri

Date Published: Mar 11, 1963

Citation: 365 S.W.2d 539

Docket Number: 49233

Court Abbreviation: Mo.