# Mo. Pac. Trans. Co. v. Miller > Supreme Court of Arkansas · February 11, 1957 · 227 Ark. 351 URL: https://www.frixlaw.com/law-library/cases/9664487 ## Case - **Full name:** Missouri Pacific Transportation Company v. Miller - **Court:** Supreme Court of Arkansas - **Decided:** February 11, 1957 - **Citations:** 227 Ark. 351; 299 S.W.2d 41; 1957 Ark. LEXIS 322 - **Precedential status:** Published - **Opinion:** Dissent by Holt - **Judges:** Robinson, Ward, Holt, Millwee, McFaddin - **Cited by:** 51 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664487 ## Opinion text J. Seaborn Holt, J., dissenting in part. I dissent from that part of the judgment which allowed the wife to recover for the loss of consortium, for the very simple reason that I can find no Arkansas law that would allow it. While it may be, as the majority points out, that “reason and justice” dictate that we allow it, however, courts have nothing to do with the wisdom and expediency of statutes and if a law appears to operate harshly, the remedy lies with the Legislature and not with us. “Until the Legislature has seen fit to designate the redress which, under Article 2, Sec. 13 of the Constitution, it has a right to do, the judiciary should not transgress the coordinate boundary established by Article 4, Section 1 of the Constitution,” Lucas v. Bishop, 224 Ark. 353 , 273 S. W. 2d 397 . This court has never had occasion to pass on this issue, however, in the recent Lucas case above, we had occasion to pass on the question of the father, Lucas, as next friend of his minor son, suing Bishop for allegedly alienating the child’s home life and parental affections. In denying right to recover in the circumstances we there said: “The creation of a right of action for a child’s benefit to compensate for loss of the intangible elements set out in the complaint here is a subject that addresses itself to the State’s policy forming department. Until the legislature has seen fit to designate the redress which, under Art. 2, § 13 of the Constitution, it has a right to do, the judiciary should not transgress the coordinate boundary established by Art. 4, § 1 of the Constitution. ‘The power of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one; those which are executive to another, and those which are judicial to another; (and, Sec. 2) no person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others.’ “But we do hold that in the case at bar Lucas as next friend has not shown that financial compensation for the things complained of has been authorized by any law, and we are not persuaded that judicial empiricism is the answer. ’ ’ The principle announced in the above case [Lucas v. Bishop] applies with equal force here. Diligence of counsel has pointed to but one case, Werthan Bag Corp. v. Agnew, 202 Fed. 2d 119, involving an accident which occurred near Forrest City, Arkansas, which resulted in injuries to the husband, and wherein the husband sued for his injuries and the wife sued for loss of consortium. The Circuit Court of Appeals for the Sixth Circuit rejected the wife’s claim for loss of consortium, refused to follow the Hitaffer case [Hitaffer v. Argonne Co., Inc., 183 F. 2d 811 (1950] strongly relied upon by the majority here, and dismissed her cause of action, and the court said: “None of these (Arkansas) cases, in our judgment, even intimates that a wife possesses the right to sue for damages for the loss of her husband’s consortium resulting from an injury negligently inflicted upon him. ¶ Being bound as we think we are to look to the common law as declared by the state courts of our country, where the Arkansas courts have not spoken upon the subject, we find the decisions, as heretofore indicated, to be overwhelmingly against the contention of appellant.” Leading text books generally appear to be against recovery for loss of consortium on the part of the wife unless statutory authority therefor exists. In 27 Am. Jur., § 514, p. 114, it is said: “Whatever right a wife may have, by virtue of statutes removing her common law disabilities, to recover for loss of consortium of her husband as a result of injuries inflicted by a third person, does not extend to loss of consortium caused by a mere negligent injury inflicted upon the husband. At least in the absence of any statute expressly conferring it, a wife, even though able to sue and be sued as a femme sole, has no right or cause of action, as a general rule, for loss of consortium due to injuries negligently inflicted on her husband. She has no such cause of action even under a statute preserving to her all rights of action growing-out of violation of her personal rights. Her loss of consortium resulting from negligence is too remote and indirect to permit her to recover therefor, and hence, it is distinguishable from loss of consortium resulting directly from a wrongful act, as where her husband is wrongfully enticed, seduced or forced away from her. Furthermore, damages to which the husband is entitled, in a suit for his injuries sustained through another’s negligence, are supposed to be full compensation for his injuries, in which compensation the wife has a benefit, with the consequence that if the wife is permitted a separate recovery for her loss of consortium resulting from such injuries, there is, in effect, a double recovery from the same matter.” In 41 C. J. S., § 404, p. 900, we find this language: “In the absence of statute, a wife has no cause of action for any loss sustained by her, including loss of consortium, in consequence of personal injuries inflicted on the husband.” The same rule is set forth in Restatement of Torts, Yol. 3, § 695, p. 496: “A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests or for any expense incurred in providing medical treatment for her husband. “Comment: a. Although a husband is entitled to recover for the loss of his wife’s services and society and any expense which he incurs as a result of illness or bodily harm caused to her by the tortious conduct of another, a wife is not entitled to a recovery under similar circumstances. The wife is not, nor has she ever been, entitled to the services of her husband. Moreover, she is not deprived of the support to which she is entitled by any tort committed against him. The husband is still legally bound to provide support for her, and the tortfeasor is liable to the husband for any loss of earning-power which he may suffer. This the husband himself may recover, and were his wife permitted to recover for the loss of support, a double recovery would result. The wife has a similar interest in the society and sexual relations with her husband as he has in such relations with her. However, the law has not recognized her right to recover against one who has caused harm to such inter-, ests by conduct which is not intended to harm them. One who has negligently injured the husband, or has intentionally caused him harm, by conduct directed toward him personally rather than toward the wife’s interest, is not liable to the wife. . . .” It is conceded here that we have no statute in Arkansas allowing for such a recovery. It appears that the right of the wife to recover for the loss of consortium has been denied in at least 29 of our states and in England. It also appears that since the decision in the Hitaffer case, supra, in 1950 the common law courts in 13 of our states, 3 Federal courts and in England have been asked to review again the question in the light of that decision and with the exception of Georgia the doctrine in the Hitaffer case has been unanimously repudiated and the common law rule adhered to and reaffirmed. Accordingly, until our own legislature acts and provides for the wife to recover for the loss of consortium, I cannot go along- with the majority opinion in this case. Mr. Justice Millwee joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664487. Public record. Not legal advice.