Shepherd v. Consumers Cooperative Association

STORCKMAN, Judge

(dissenting).

On March 11, 1963, this court en banc by a divided court adopted an opinion in Novak v. Kansas City Transit, Inc., Mo., 365 S.W.2d 539 , which overruled prior decisions of this court and created a cause of action in favor of a wife for loss of consortium caused by the negligent injury of her husband. Three members of this court (of which the writer was one) joined in a dissenting opinion which urged that the creation of such an action was not justified by the Married Women’s Act and was also contrary to the public policy of the state as expressed in the Workmen’s Compensation Act which does not recognize consortium as an item of compensation for either spouse. The dissenting opinion further urged that the abolition of the husband’s action for consortium would be more consistent with the intent and purpose of the Married Women’s Act because either injured spouse can now sue for and recover all proper items of damages in his or her own name. The cases which have appeared in this court indicate that the offspring, with the encouragement of Novak, is likely to become as numerous and sizeable as the parent action. I still believe that Novak is unsound and that all proper damages could be recovered under existing remedies and procedures.

Since the opinion was adopted, events have occurred which further demonstrate the unsoundness of the Novak decision generally and particularly as a rule of law to be applied in this state. The purpose of this dissenting opinion is to call attention to these additional factors.

On November 25, 1963, the Supreme Court of New Mexico in the case of Roseberry v. Starkovich, 73 N.M. 211 , 387 P.2d 321 , considered the question and held that a wife had no cause of action for loss of consortium. The Novak case is cited among the cases from states following the minority rule. The Supreme Court of New Mexico concluded that the majority of the states adhere to the rule denying a right of recovery. ' In a comparatively brief, unanimous opinion, the Supreme Court of New Mexico lists various state decisions, considers the views of text writers, and the arguments for and against the maintenance of such an action. The opinion comments on the “uncertain and indefinite nature of a wife’s claim for negligent interference with her right of consortium”, the “possibilities opened for double recovery if the right is recognized”, and the “great weight of authority developed since 1950”. We will not undertake to discuss the opinion further but approve and adopt it by reference as a part of this dissent.

*642 In answer to the argument that a consortium action results in an overlapping of benefits and a double recovery of damages, the Novak opinion states, 365 S.W.2d 544 : “Such result may be avoided by delineating accurately the items properly includable in the husband’s damages and by permitting the wife in her separate action to recover for the loss of only those elements of consortium which, under the facts of a particular case, represent separate and distinct losses to her.”

In 1964 this court gave final approval to Missouri Approved Instructions which are to be effective January 1, 1965. The only measure of damage instruction relating to personal injuries and property damage is 4.01 which is as follows: “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any [injuries and] damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence.” If we must have this type of action, I agree that the items of damage should be carefully delineated in the case of each spouse. But which admonition should be followed, the Novak decision or the Missouri approved instructions? Furthermore, so far as I have been able to discover, this court has not delineated accurately the items of damages in a consortium case and I doubt if it can be done so as to prevent double recoveries as contemplated by Novak. There is nothing in MAI-4.01 to prevent this happening.

An additional and independent reason why I cannot agree with the majority opinion is that it gratuitously purports to approve as “other rights to which a wife is entitled” allegations from the prayer of plaintiff’s petition in the case of Bernhardt v. Perry, 276 Mo. 612 , 208 S.W. 462, 464 . At pages 639 and 640 the majority opinion copies from the pleadings as set out in the statement of facts in the Bernhardt case. But their propriety as elements of damages was not adjudicated. Including them in this opinion with apparent approval is likely to be misleading.

Furthermore, the resort to this method of defining consortium demonstrates the difficulty of doing so. In an annotation on loss of consortium in 23 A.L.R.2d 1378 , 1380, it is stated: “Neither the courts nor the legal text writers are able to agree on a definition of consortium, and, while the former are almost unanimously agreed that the wife has no right of action for its loss through the negligent injury of her husband by a third person, the latter, with almost equal unanimity, feel that she should have such a right of action.” Further on the same page, the annotator states that among the reasons assigned by the courts for denying a wife a right of action for negligent invasion of consortium are these: “that the action is based on the husband’s right to his wife’s services, whereas she has no corresponding right to his, and that no new rights were created by the Married Women’s Acts, and, since the wife had no such action at common law, she still has none.” Unless this court can succinctly define consortium and accurately delineate the items of damages, the trial courts and juries are going to be without the guidance to which they are entitled.

As predicted at the time the Novak opinion was adopted, litigation in this field has begun to flourish as indicated by the cases which have reached this court on appeal and otherwise. Some effort to prevent the load of the trial courts from being increased unduly is indicated by the adoption of S.Ct. Rule 66.01(c) referred to in the case of State ex rel. Keeling v. Randall, Mo., 386 S.W.2d 67 .

My opinion that the creation of this new form of action is not justified and that fair and adequate compensation can be obtained under existing forms of action has not changed. Therefore, I respectfully dissent.