“This contention by defendant [spouse has no separate and distinct damage by virtue of his or her loss of consortium] is contradicted by decisions of this court that have recognized that consortium is a separate property right of each spouse to the marital relationship.”
How later courts described this case
- “This contention by defendant [spouse has no separate and distinct damage by virtue of his or her loss of consortium] is contradicted by decisions of this court that have recognized that consortium is a separate property right of each spouse to the marital relationship.”
- “The distinct nature of each spouse’s right to consortium is perhaps most clearly evidenced by the fact that either spouse may sue for loss of consortium by means of an alienation of affections action even though the other spouse was a joint tortfeasor.”
Written by the judges who cited it.
The opinion
HARRIS, Justice
(concurring specially).
I concur in the result in division I of the majority opinion because and on the basis of our holding in Stewart v. Madison, 278 N.W.2d 284, 295, 296 (Iowa 1979). On stare decisis grounds that opinion is both sufficient and compelling to warrant our refusal to adopt the comparative negligence doctrine. I do not subscribe to the entreaties set forth in the majority opinion and direct *677 ed to the legislature suggesting that we will adopt the doctrine of comparative negligence if the legislature fails to do so.
The policy arguments for the doctrine do not demand that we renounce our unanimous refusal a year ago to change our long-established rule. In discharging our law-giving function this court has an obvious duty to adopt the principles which best serve the public interest. But on a great many policy questions, and on countless other relatively close questions, the public has an overriding need for at least a minimum of predictability and certainty in the law. This need should take precedence in the pending appeal.
The suggestion that we abandon the doctrine of contributory negligence in favor of comparative negligence seems to appeal to the private sense of abstract justice of many, perhaps most, of the members of this court. But it does not seem to me that the question is so clear or one-sided as to impel that we direct a complete change in this important rule or that we try to direct the legislative branch of government to do so. Too often such a change of a well-understood and established principle is wrought at the expense of an orderly trial process. In the myriad of tort suits pending in Iowa trial court must each judge undertake to predict when the majority’s patience would be exhausted? Would it be exhausted if a bill to adopt comparative negligence were defeated in the general assembly? Would it be exhausted if a bill were to be filed but not considered? Would it be exhausted if the legislature took the trouble to codify our present rule of contributory negligence?
Any real or imagined advantage in a rule of comparative negligence is not worth the cost. I therefore concur in adhering to our holding in Stewart v. Madison and disassociate myself from the other expressions in division I. I would leave it entirely up to the legislature to decide, not only when, but if, the doctrine of comparative negligence should be adopted.
II. I agree with the majority that our decision in Handeland v. Brown, 216 N.W.2d 574, 578-79 (Iowa 1974), controls the question. I concur in division II.
REES, J., joins this special concurrence.