The opinion of the court was delivered by: Marovitz, District Judge.
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
Neither of the parties cited the Owen case in their original
briefs, so we asked them to file supplementary briefs
1966) refutes a theory initially advanced to support the Indiana
"In Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40
L.R.A.,N.S., 236 (1912), the court held that this
interest of the wife was not a property right or
derived from a contract of bargain and sale, and it
lies in an area which the law will not enter except
out of necessity. However the right is characterized,
it arises from the marital relation, and to say that
it inheres in the husband but not the wife is to
indulge in what the Hitaffer court termed `legal
It is indeed true that certain of the ancient disabilities of
coverture remain, and that in the law husband and wife still are
not on a parity in all respects. By way of example, the husband
is obligated to support his family, and cannot dispose of his
property by will so as to defeat his wife's right to take at
least one-third of his property. But there is a legitimate reason
for such laws. In our society, the husband by force of custom and
practice is regarded as the family breadwinner. Surely our laws
may conform to soundly rooted custom. Indeed custom gave birth to
such laws and they are as reasonable today as when enacted. (I
might expect a challenge on this point from some married men.)
But no reasonable suggestion can be offered any longer to
explain the disparity in the spouses' relative rights to sue for
loss of consortium. It is fair to say that no such rationale
It is clear that classification per se is not prohibited by the
equal protection clause. In order to constitute a violation
thereof, a law must establish a classification so unreasonable as
to be purely arbitrary. Or as the Supreme Court has oft-times
stated: "A statutory discrimination will not be set aside if any
state of facts reasonably may be conceived to justify it."
McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101,
1105, 6 L.Ed.2d 393 (1961); New York Rapid Transit Corp. v. City
of New York, 303 U.S. 573, 578, 58 S.Ct. 721, 82 L.Ed. 1024
The Supreme Court has been noticeably more reluctant to
interfere with state policy where economic interests, as
distinguished from the "basic civil rights of man", are involved.
This reluctance has prompted at least one writer to state that
the Equal Protection Clause has "two sides" — one imposing a
definition of reasonableness for classifications involving
economic interests which is "comfortably loose", and the other
rigorously scrutinizing any classification which impinges upon
the "basic civil rights of man". McKay, Political Thickets and
Crazy Quilts; Reapportionment and Equal Protection, 61
Mich.L.Rev. 645, 666 (1963); See Krause, Equal Protection for the
Illegitimate, 65 Mich.L.Rev. 477 (1966). The defendant suggests
that since the instant dispute concerns an "economic interest" of
Mrs. Karczewski, rather than a "basic civil right," that an
economic classification which distinguishes between husbands and
wives is tenable.
But the Supreme Court's reluctance to act in economic matters
has not prevented it from applying the equal protection clause to
certain conflicts regarding state regulation of economic
activity. In Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1
L.Ed.2d 1485 (1957), the Court struck down a state legislation
which created a closed class by exempting money orders issued by
the American Express Company from regulations applicable to all
other issuers of such orders. In Wheeling Steel Corp. v. Glander,
337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949), an ad valorem
tax imposed by a state only upon certain intangible property
owned by foreign corporations which did business within the
state, was held to violate the equal protection clause since the
tax was not levied upon domestic corporations. And in several
other cases, the Court has recognized that economic interests are
protected by the equal protection clause. Hillsborough v.
Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946)
(discriminatory property tax assessment); Hartford Steam Boiler
Inspection and Ins. Co. v. Harrison, 301 U.S. 459, 57 S.Ct. 838,
81 L.Ed. 1223 (1937) (Discrimination between various categories
of insurance companies.)
Nevertheless, in matters involving economic interests, it must
clearly be shown that the challenged classification is without
any reasonable basis, and is clearly arbitrary, before it can be
upset on equal protection grounds. As was stated long ago in
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31
S.Ct. 337, 340, 55 L.Ed. 369 (1911), and still relevant today:
"1. The equal protection clause of the 14th Amendment
does not take from the state the power to classify in
the adoption of police laws, but admits of the
exercise of a wide scope of discretion in that
regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely
arbitrary. 2. A classification having some reasonable
basis does not offend against that clause merely
because it is not made with mathematical nicety, or
because in practice it results in some inequality. 3.
When the classification in such law is called in
question, if any state of facts reasonably can be
conceived that would sustain it, the existence of
that state of facts at the time the law was enacted
must be assumed. 4. One who assails the
classification in such a law must carry the burden of
showing that it does not rest upon any reasonable
basis, but is essentially arbitrary."
Accord; McGowan v. State of Maryland,
, 525, 81 S.Ct.
1101, 6 L.Ed.2d 393 (1961).
In the instant case, we have already determined that the denial
of the wife's right of action can no longer be explained on any
rational basis. It is clearly no more than a relic of an ancient
era in the law. Where no reasonable justification for its
existence other than longevity can be offered, and defendant and
the Indiana courts offer no other, it must be considered to be an
Defendant however, insists that the Supreme Court does not
often enter into the area of marital relationships, and has never
found a law distinguishing on the basis of sex to be in violation
of the Fourteenth Amendment. It cites several cases in support of
the proposition that sex furnishes a reasonable basis for
legislative or judicial classification. But it suggests no
reasonable basis for the instant classification. Certainly the
classifications upheld by the Supreme Court in the cases cited by
defendant had a reasonable basis. They involved limitations on
the number of hours women could work, Muller v. State of Oregon,
208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); Miller v.
Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628 (1915); Riley v.
Commonwealth of Massachusetts, 232 U.S. 671, 34 S.Ct. 469, 58
L.Ed. 788 (1914); Bosley v. McLaughlin, 236 U.S. 385, 35 S.Ct.
345, 59 L.Ed. 632 (1915); Radice v. People of State of New York,
264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690 (1924), or womens'
minimum wage laws. West Coast Hotel Co. v. Parrish, 300 U.S. 379,
57 S.Ct. 578, 81 L.Ed. 703 (1937). As the Court recognized in
those cases: "`a woman's physical structure and the performance
of maternal functions place her at a disadvantage in the struggle
for subsidence' and that her physical well being `becomes an
object of public interest and care in order to preserve the
strength and vigor of the race.'" West Coast Hotel Co. v.
Parrish, supra at 394, 57 S.Ct. at 583.
But none of those considerations are present in the instant
case. We have demonstrated the absolute lack of any reasonable
justification for the disputed Indiana doctrine. A recent article
has recognized that women are deserving of special status and
legislation which relates to their function as mothers and their
relative physical distinctions from men. Murray and Eastwood,
Jane Crow and the Law; Sex Discrimination and Title VII, 34
Geo.Wash.L.Rev. 232, 238-39 (1965). But the article contends,
classification based on sex, like any other classification, is
not justified where it restricts womens' rights in a manner which
has no bearing on either the maternal function, physical
characteristics, or any other reasonable explanation. Where
classification is done without reason, "it disregards
individuality and relegates an entire class to inferior status."
The article suggests that the concept of "classification by sex",
which was derived from progressive labor legislation, and upheld
in such cases as Muller v. State of Oregon, 208 U.S. 412, 28
S.Ct. 324, 52 L.Ed. 551 (1908), cited by defendant, has been
extended as a basis for legislative classification to subjects
remote or unrelated to sex. And this is undoubtedly true, so that
"classification by sex", even without any reasonable
justification has either been benignly approved, or gained a
certain dubious aura of respectability. See Murray and Eastwood,
We believe that the instant classification by sex certainly is
unrelated to any of the concerns which could motivate a
distinction on that basis. As we have indicated, the intangible
segments of the elements comprising the cause of action for loss
of consortium are equally precious to both husband and wife.
Certainly, no justification is apparent, or is offered, to
affirmatively support the classification. We think, therefore,
that it discriminates unreasonably and arbitrarily against women,
and must be abolished.