APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. GILIBERTO, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiff Daniel Sostock and Wendy Sostock (Wendy) filed a two-count complaint against defendants seeking damages for personal injuries sustained by Wendy prior to her marriage. In count II, plaintiff sought to recover for loss of consortium sustained from the date of their subsequent marriage. Defendant John Reiss' motion to dismiss count II was granted. Plaintiff appeals and requests this court to recognize a cause of action for loss of consortium from the date of marriage where at the time of Wendy's accident they were engaged to marry and shortly thereafter were married. Wendy is not a party to this appeal.
In count II of the complaint, plaintiff alleged that on May 13, 1977, Wendy sustained personal injuries in a fall from a horse allegedly caused by defendants' negligence and that on June 5, 1977, he married Wendy, and at all times subsequent thereto was her lawful, wedded husband, and that he lived, consorted and cohabited with his said wife; that following his marriage he has suffered the loss of the services of his wife and has been deprived of her affection, society, companionship and consortium by means of defendants' conduct. Defendant John Reiss made a motion to strike and dismiss the second count because no legal relationship existed between plaintiff and Wendy at the time of the accident and because plaintiff voluntarily assumed the marital relationship. The trial court granted defendant's motion and certified it as a final and appealable order. Plaintiff appeals from the denial of his motion for rehearing.
• 1 The sole issue presented for review is whether a cause of action for loss of consortium exists in favor of a husband where the injury to his wife occurred shortly before their marriage while they were engaged. It is well settled that under Illinois law a spouse may recover for loss of consortium where his spouse is injured due to the negligent acts of third persons. See Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881.
Plaintiff contends that although Illinois courts> have never addressed the instant issue, two Federal district court decisions indicate "a definite willingness * * * to allow recovery for loss of consortium where the couple had evidenced a clear intention to be married and where the accident in question closely preceded the date of the marriage."
Plaintiff relies, almost exclusively, on Sutherland v. Auch Inter-Borough Transit Co. (E.D. Pa. 1973), 366 F. Supp. 127, which was a diversity action and purported to follow Pennsylvania law. There the husband was allowed to recover for loss of consortium from the date of marriage which took place 27 days after the wife's injury. The Federal court held that it was not bound by the lower court decision in Sartori v. Gradison Auto Bus Co. (C.P. Wash. County 1967), 42 Pa. D. & C.2d 781, *fn1 and stated:
"Although the Sartori court did not expound on the time interval involved between accident and marriage, we are of the opinion that the Supreme Court of Pennsylvania would make some modification of the holding in that case where, at the time of the accident, plaintiffs were engaged to be married and the wedding date was less than a month away." 366 F. Supp. 127, 134.
"[Where a] woman incurs injuries prior to her marriage, the right to recover for the bills should be considered her property and her cause of action. She should plead and if she proves it, collect it. A subsequent husband should not acquire any right to sue for loss of consortium. He should not be entitled to marry a cause of action." 42 Pa. D. & C.2d 781, 785.
However, our research of Pennsylvania law indicates that contrary to Sutherland, its supreme court is not likely to modify the Sartori rule. Orga v. Pittsburgh Rys. Co. (1944), 155 Pa. Super. 82, 38 A.2d 391, is the only intermediate court of review in Pennsylvania to indicate, in dictum, that a husband may claim damages for loss of consortium where his spouse sustained injury prior to marriage. However, the court there refused to decide the issue since it was not raised on the trial level. Two years later this dictum was specifically rejected in Donough v. Vile (C.P. Phila. County 1947), 61 Pa. D. & C. 460. There, although the injury to the wife occurred only 10 days prior to the scheduled wedding date (which was delayed one month due to the accident), the court held that where the marital relationship did not exist at the time of the tort, a cause of action cannot be created by marriage subsequent thereto. 61 Pa. D. & C. 460, 462.
In 1958, Meehan v. City of Erie (C.P. Erie County 1958), 42 Erie 71, another Pennsylvania court of common pleas, reiterated this principle. Eileen Meehan, while single, was injured on July 31, 1955, and married Robert Plowski sometime prior to the filing of the complaint on January 3, 1957. Although the court dismissed the action because of deficiencies in the complaint, it stated that since Robert married Eileen after the accident he could not in so doing acquire any rights against defendants. It reasoned that it would be absurd to assume that where a woman was seriously injured and permanently crippled in an accident prior to marriage that a man could thereafter marry her and claim to be deprived of his expected rights. 42 Erie 71, 76.
In 1963, another court of common pleas in Pennsylvania held that since the husband had no right whatever to the services of his prospective wife at the time of the accident, he lost no rights for which he could claim compensation from defendants. (Fontana v. Mellott (C.P. Fulton Cty. 1963), 4 Adams Cty. L.J. 162, 167.) That court also expressly refused to follow the dictum in Orga.
Even after Sutherland, Pennsylvania State courts> still refused to extend a cause of action for loss of consortium to a prospective spouse. (Rockwell v. Liston (C.P. Fayette County 1975), 71 Pa. D. & C.2d 756.) There the district court, while noting the short time span between the accident and the marriage (approximately one month), reasoned that since an action for consortium was an anachronism, that the supreme court of Pennsylvania would be ...