Troue v. Marker

Majority - Arterburn, J.

Yes, a wife in Indiana does have a cause of action for loss of consortium of her husband due to a negligent injury by a third party, abrogating previous precedent that denied such a right. The Court first established its inherent constitutional authority, independent of statutory rules, to review and change its own precedents, treating the petition to transfer as a common law writ of certiorari. On the merits, the Court found the doctrine denying a wife recovery for loss of consortium to be archaic, originating from the concept of 'coverture' which limited a married woman's legal capacity and treated her as subservient. The Court noted that this concept has been largely replaced by a 'partner concept' of marriage and legislation like the Married Women's Act. It rejected the reasoning of prior cases, which attempted to distinguish a husband's right to recover from a wife's, calling such distinctions 'specious' and illogical. The Court clarified that consortium encompasses both intangible elements (love, affection, companionship) and pecuniary elements (services performed, like driving, which have monetary value if lost). Citing the landmark decision in Hitaffer v. Argonne Co. and the overwhelming trend in other jurisdictions, the Court concluded there was no valid reason to deny wives this right. However, to prevent double recovery against the tortfeasor, the Court explicitly stated that a wife cannot recover for loss of support due from her husband in her consortium action, as the husband's recovery for lost earning power already accounts for his ability to provide support. Consequently, previous cases such as Boden v. Del-Mar Garage and Burk v. Anderson, which denied a wife's right to recover for loss of consortium, were overruled.