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
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
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.
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
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
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
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
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
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 ...