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June 27, 1967


The opinion of the court was delivered by: Marovitz, District Judge.


Defendant's Motion for Summary Judgment on Count II

This two count action, removed from the state courts, stems from an auto-train wreck in which plaintiff Charles Karczewski, the driver of the automobile, allegedly suffered permanent injuries of a serious nature and was rendered sexually impotent. In count two, Charles' wife Alma Karczewski, seeks recovery of $350,000 for loss of consortium with her husband, which is allegedly a result of defendant's negligent conduct.

The accident occurred in Gary, Indiana. Defendant moves for summary judgment on count two, urging that Indiana law, which is applicable to this suit, does not recognize a cause of action based on loss of consortium brought by the wife of a negligently injured man.

Under Illinois conflict of laws principles, the law of the place of the tort must determine the substantive law in these circumstances. Insull v. New York World-Telegram Corp., 172 F. Supp. 615, 632 (N.D.Ill. 1959); Colligan v. Cousar, 38 Ill. App.2d 392, 187 N.E.2d 292 (1963); Wartell v. Formusa, 34 Ill.2d 57, 59, 213 N.E.2d 544 (1966); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Accordingly, Indiana law is controlling.

It is undisputed that despite criticism in Miller v. Sparks, 136 Ind. App. 148, 189 N.E.2d 720, 722 (1963), Indiana does not allow a wife to sue for loss of consortium because of negligent injury to her husband. Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236 (1912); Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E. 860 (1933); Miller v. Sparks, supra; See Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952). However, in the reciprocal situation, he may recover for loss of consortium for negligent injury to his wife. Burk v. Anderson, supra. Thus, if we follow Indiana law, we must dismiss count two of the complaint.

  The recent case of Owen v. Illinois Baking Corp., 260 F. Supp. 820
 (W.D.Mich. 1966), however, casts doubt upon the
constitutional validity of the Indiana position. Owen expressly
upholds the wife's right to sue in Indiana for loss of
consortium, on facts foursquare with those involved here, by
holding the current doctrine to be contrary to the equal
protection clause of the Fourteenth Amendment. Allowing the
husband to maintain an action for loss of consortium while
denying a similar action to the wife seemed an arbitrary and
unreasonable classification to Judge Fox.

Neither of the parties cited the Owen case in their original briefs, so we asked them to file supplementary briefs discussing the vitality of the Indiana law in light of Owen, and to focus on the equal protection issue, which had not previously been raised by the plaintiff.

It is clear that under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal courts in diversity cases must follow state substantive law. However, they may look to the governing federal law when a federal question is raised. Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933); Porter Royalty Pool Co. v. Commissioner of Internal Revenue, 165 F.2d 933 (6th Cir. 1948). It is indisputable that federal law governs when, as here, a state law is challenged for federal constitutional reasons. Thus we would not be bound to adhere to Indiana law, if we determined it to be unconstitutional.

Owen was decided in the Michigan Federal District Court. It was brought by the wife of a man negligently injured by the defendant, to recover damages for loss of consortium. The accident in Owen, like the instant case, occurred in Indiana. Under Michigan conflicts law, the Indiana substantive law governed the action. In reaching its decision, the court cited approvingly the landmark case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 23 A.L.R.2d 1366 (1950), which was the first case to uphold the wife's action for loss of consortium where negligence was the cause of the accident.*fn1 In addition, Judge Fox noted that the Indiana law was severely criticized, although not overturned, in Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952). He concluded that since in Indiana, husbands may maintain actions for loss of consortium for injuries to their wives, wives should have an equal right, and:

  "To draw such a distinction between a husband and
  wife is a classification which is unreasonable and
  impermissible, and is likewise a violation of the
  Fourteenth Amendment guarantees." (260 F. Supp. at

But as defendant pointed out, the Court essentially based its decision on the following: (at 821)

  "And to grant a husband the right to sue on this
  right while denying the wife access to the courts in
  assertion of this same right is too clearly a
  violation of Fourteenth Amendment equal protection
  guarantees to require citation of authority."

Thus we think that the Owen case, in and of itself, is not of great precedential weight on the issue, since, as indicated by the above quotation, it did not actually analyze the problem, but essentially stated a conclusion. Nevertheless, the decision in that case raises a major issue, to which we propose to give careful consideration. We think a proper discussion of the issue should begin with an historical analysis of the disputed right of action.

The early status of women during the sixteenth and seventeenth centuries vitally affected the common law attitude toward relational marital interests. The wife was viewed for many purposes as a chattel of her husband, and he was entitled to her services in the eyes of the law. Thus he was given the right at common law to recover for injuries to his wife caused by intentional wrongs, as compensation for the loss of her services. The wife, however, as a "servant" was not entitled to sue for the loss of services of her husband, since in theory he provided none.

The Married Women's Acts, however, removed some of the disabilities of married women, and allowed them to seek redress for torts intentionally inflicted upon their husbands. Indeed, in Indiana, they have long been able to sue for an intentional interference with the marital relationship, in the form of an action for alienation of affections. Holmes v. Holmes, 133 Ind. 386, 32 N.E. 932 (1893).

With the development of the law of negligence, the Indiana courts gave recognition to the husband's right to recover for negligent harm to his conjugal interests. Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952). As has been indicated, wives are denied a similar right in Indiana insofar as consortium is involved.

Indeed until 1950, wives were denied this right in all states. But Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (1950), established the wife's right to sue for loss of consortium for negligent conduct. Since that decision, the courts of last resort for the most part have split on the issue.*fn2

Part of the increased recognition of the wife's rights may have stemmed from the expanded scope of interests thought to be encompassed by the action for the loss of consortium. Whereas originally, it was thought to include only the loss of services, it became clear that benefits peculiar to the conjugal relationship were contained as well. These included certain sentimental values such as loss of love, affection, society ...

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