*1 Dennis, Richmond, David Ind., W. Foster, Tony Ind., Indianapolis, Margaret ENGLAND, Plaintiff-Appellant, Dennis, plaintiff-appellant; Dennis & Reinke, Bingham Richmond, Ind., Sum- CORPORATION, DANA Defendant mers, Spilman, Indianapolis, Welsh & -Appellee. counsel. S.tewart, Leads, James J. Terence Indi- United States Court of anapolis, defendant-appellee; Seventh Circuit. Stewart, Irwin, Gillion, Meyer, & Fuller Jan. Indianapolis, Ind., of counsel. CASTLE, Judge, Before Chief Rehearing 1, 1970. DUF- May FY, Judge Senior Circuit and FAIR- CHILD, Judge. Circuit DUFFY, Judge. Senior Circuit This suit was a law damages alleged brought and consortium employer, her husband’s Dana Corporation, arising personal inju- ries which husband suffered and which out in the course arose of and employment. his The District Court considered defend- summary judgment ant’s motion for motion to dismiss same. action for fail- Court dismissed the complaint ure of amended relief could be state a claim granted. appeals from the or- Plaintiff der of dismissal.

Plaintiff’s husband ordered defendant, of his duties of course employment, perform certain tasks in voltage high proximity to a trans- close by de- former owned and maintained manufacturing building. fendant in its duties, plaintiff’s performing While permanently disabled husband was elec- thousand volts of reason of several alleged unpro- emanating tricity, entering voltage cables, high tected dispute se- body. as to the is no There injuries sus- verity extent of the or the tained. dispute since is no

There also were re- plaintiff’s husband duty at of his one course ceived manufacturing plants in of defendant’s Richmond, he was to the *2 386 (Burns then stated: “In Compensation The Indiana Workmen’s dealing principle 40-1206). this case we are with a Ind.Stat.Ann. § origin or its in doctrine of law that has clearly estab courts The Indiana time, a wife was more an archaic when did not Indiana the law of that lished companion part- a and servant than a recognize on of of action behalf cause a unity that time the ner.” Also: “Since for loss or consortium loss of a wife large part marriage concept in a of has injuries arising to her of given way concept partner where- to al., et v. Kistleman Brown husband. by equal as an a married woman stands L.R.A.,N. 631, 40 692, N.E. Ind. 98 177 eyes the law.” in of to her husband S., Del-Mar Ga (1912); Boden v. 236 holding 59, Inc., N.E. 860 The Indiana rage, 185 Court’s in 205 Ind. Troue Ind.App. Marker, supra, by Sparks, 136 v. was stated (1933); Miller (1963); v. Court Burk “We 148, be hold that a N.E.2d 720 therefore 189 77, al., N.E.2d 109 wife in 232 Ind. this is et state entitled recover Anderson McDaniel, wrong- (1952); 245 loss of consortium a McDaniel v. 407 husband, doer who (1964). has her 551, 201 N.E.2d 215 is not she entitled to recover of Recently this decided Miskunas support due from the husband to such Corp., (7 v. Union Carbide 399 F.2d 847 in wife such action.” 1968). The District Court there law, held that under Indiana a wife had Assuming deciding but not that of no cause loss of her hus- Marker, supra, under Troue v. deci services, companionship con- band’s or in sion case a full has retroactive sortium, granted the defendant’s England effect, Margaret hold that we complaint. ap- motion to dismiss the On right legal bring had the an action

peal, bound this Court held that we were for loss of consortium due to the line of Indiana to follow unbroken by However, husband. authorities, affirmed. and we question remains as whether such a Miskunas, page supra, In said at if we claim barred Compensation Indiana 849: circuit have Workmen's Act “Two states this (Burns 40-1206). adopted the wife be Ind.Stat.Ann. § rule permitted to consortium. sue loss of remaining issue before us is Although com- this rule much to has employee an hus- whether the wife of it, mend we are bound the unbroken precluded em- is band authority of Contra- line Indiana ployer by of the “exclusive” character * * *” je the Indiana Workmen’s argu- However, the date of after oral provides, part: Act That case, Supreme Court in this ments rights herein and remedies “The 9, 1969, decided on December of employee to this an Marker, 252 N.E.2d 800. Troue v. * ** personal account of act the issues in The Indiana stated injury ex- shall or death accident * “* * or to be whether that case rights remedies of all clude other prevailing in Indiana of doctrine not the personal represent- employee, his such recognized denying cause a kin, atives, at dependents or next her hus- loss of consortium action for otherwise, on account law or princi- abrogated and the band should injury death.” or of such changed relating ple thereto should grant of action as wife such cause so v. John ease of Stainbrook loss.” has for husband Bureau, Cooperative County Farm son 487, Association, Inc., Ind.App. 122 125 also The Indiana stat- (1954), holds proceed 886-887 consider N.E.2d ed: “We now employee question or husband of an on the merits as to whether of kin” may con- recover for in the words not a wife this state.” Indiana husband sortium pending he Act and therefore that sue now before the (Cause 3511), his wife’s loss of consor- Court of No. Miner, having argued orally tium. In 218 Ind. McDonald been before that (1941), wife 32 N.E.2d Court on 1970. The *3 employ- course of was the further states that whatever the decision ment and later The husband sued Appellate died. be, in the Court transfer wrongful employer the death. certainly sought will almost the heavily decision of the rested Supreme Court of Indiana. interpretation the the words ordered, petition It is the re- “next of kin” in Indiana Workmen’s the hearing judgment our herein filed on noted January 14, 1970, the same generally kin” that “next of is construed hereby denied, permission relation, to mean nearest but stat- blood petition reopening file a Wrongful Death ed that Statute Supreme Indiana decide the “* * * usually kin’ is inter- ‘next of contrary law to the in the ease between pretated who take all those embrace parties pend- the same and which is now and distribu- under the of descent laws ing before the Indiana Court. surviving tion, including spouse.” rehearing by plaintiff-appel- Petition for surviving The Court concluded lant is (husband) spouse was thereby was ex- words of kin” and because cluded Indiana Work- the remedies under Compensation Act, Section are

men’s expect no reason exclusive. We have Supreme Court would the Indiana logic apply a wife’s suit that same employer. husband’s plaintiff’s claim We hold that STEPHENSON, Charles William Charles remedy Stephenson, herein is barred William as father exclusive and next Stephenson, Kathy friend of Don provision the Indiana a/k/a Stephenson, na C. Charles Ste William Compensation Act. phenson Nancy Stephenson, Nor Judgment Bakke, man Bakke and Leota Plaintiffs- Affirmed. Appellees, ORDER COMPANY, Inc., DURIRON Defendant Third-Party Plaintiff-Appellee. PER CURIAM. Plaintiff-appellant has filed a motion COMPANY, AETNA INSURANCE Third- Party Plaintiff-Appellee, rehearing judgment of our entered held that F.2d 385. We there under KUHNS BROTHERS COMPANY and ruling

recent Indemnity Hartford Accident and Com pany, Third-Party Defendants-Appel legal right Court, appellant lants. bring a suit of consortium due by her husband. We further held that claim in United States instant exclusive case was barred Sixth Circuit. remedy provision Indiana Work- June men’s rehearing, appellant In her states that a action identical to cause of us,

the one which has been and before