(dissenting).
Josephine Miskunas, plaintiff, has appealed from a final judgment of the district court dismissing her action for loss of consortium. The action is for damages to her marriage resulting from injuries to her husband which she alleges deprived her of his “society, services, companionship and consortium”. The district court held that under Indiana law a wife cannot maintain an action for loss of her husband’s society, companionship, affection and conjugal relationship occasioned by personal injuries to her husband. In the district court and on appeal plaintiff has argued that that application of Indiana law, resulting in a dismissal of her complaint, violates the fourteenth amendment to the federal constitution by denying her equal protection of the law, since a husband may pursue such a remedy under Indiana law. Contrary to the view of the majority herein, I would hold that such application of the Indiana law by the district court denies plaintiff the equal protection of the law, in violation of the fourteenth amendment to the federal constitution.
1. Consortium means, inter alia, the marital association of husband and wife. Since the wife was considered a chattel of her husband at common law and he entitled to her services, the term connotes in addition to the right of. companionship, cooperation, affection and aid, the husband’s right to a wife’s services, i.e. her wifely services. However, society since has removed the wife’s disabilities existent at common law and now considers the wife a citizen equal with her husband. Indiana has in fact “emancipated” the married woman by enactment of various statutes relating to her property, services, ability to sue and to be sued, etc. (Burns Ind. Stat. ch. 38 §§ 101 to 126).
2. While the majority correctly recognizes some prevailing limitations relating specifically to women, enacted by the state, which deal with a woman’s economic pursuits, viz., hours and types of employment, see Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948) and Muller v. State of Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908), the Indiana courts remain closed to a woman who seeks damages for a wrong to her, caused by the negligence of a third person which results, in injury to her husband. Contrary to the fact in Goesaert v. Cleary, supra, Indiana has enacted no statute barring to a wife the remedy sought by plaintiff here. Involved is a court’s reclassification by sex of a citizen’s civil rights to remedy a wrong to her interests—followed by its extinction by judicial fiat, repugnant to constitutional principles.
Thus, in Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236 (1912), the Indiana Supreme Court adopted the reasoning that, since the husband could not recover for his wife’s personal damages and for his loss of consortium at common law, a wife has no cause of action for loss of consortium today. The fallacy, apparent from the opinion and now perpetuated by that court, is that at common law a wife’s action for personal damages did not exist. The value of a wife to her husband was exactly her ability to earn money and render services and be helpful to others, *852viz., his consortium. Thus we find, at 696-697, 98 N.E. at 633:
“The actions by husbands at common law for expenses and loss of services, in which the loss of consortium has been considered in estimating damages, were all in eases in which no damages could be awarded for loss of the ability to earn money and render services and be helpful to others, in an action by the husband and wife for the wife’s personal damages, because at common law all these elements of damage belonged to the husband. * There was not an allowance to the wife for her loss of ability to earn wages and render services, and at the same time an allowance to the husband, in the form of compensation for the loss of consortium for the same diminution of ability to be helpful. * * * When the injury is to the person of another, the impairment of ability to work and be helpful and render services of any kind is paid for in full to the person injured.”
However, the husband is permitted now to recover for loss of consortium based upon loss of “wifely” services and the wife is permitted to recover for injury to her person for the same tort. Burk v. Anderson, 232 Ind. 77, 109 N.E.2d 407 (1952); Cf. Ohio and Mississippi Ry. Co. v. Cosby, et al., 107 Ind. 32, 7 N.E. 373 (1886); and P. B. Arnold Co. v. Buchanan, 60 Ind.App. 626, 111 N.E. 204 (1916). In spite of this fact, where the husband is negligently injured, the wife is barred from recovery for her loss of consortium. Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E. 860 (1933). In Boden, the Indiana court rejected the wife’s argument that the husband had an independent right of action for loss of consortium unconnected with the loss of service. At 863, it stated:
“Upon an exhaustive examination of cases in many jurisdictions we find that, wherever the husband has brought an action for damages on account of injuries to his wife by the negligence of a third party to recover for loss of service, companionship, and society of his wife, the gist of the action, and the real basis of recovery, is for the loss of service, and not the loss of consortium.”
Obviously, if an action for loss of consortium may be maintained by a husband by alleging wifely services, a wife is denied equal protection of the law if she is denied the corresponding services due her as a result of coverture. The opinion in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, at 819 (1950),1 holding that a wife has a cause of action for loss of consortium due to a negligent injury to her husband, demonstrates this inequity:
“* * * logic, reason and right are in favor of the position we are now taking. The medieval concepts of the marriage relation to which other jurisdictions have reverted in order to reach the results which have been handed to us as evidence of the law have long since ceased to have any meaning. It can hardly be said that a wife has less of an interest in the marriage relation than does the husband or in these modern times that a husband renders services of such a different character to the family and household that they must be measured by a standard of such uncertainty that the law cannot estimate any loss thereof. The husband owes the same degree of love, affection, felicity, etc., to the wife as she to him.”
Relevant comments with respect to Indiana law on this subject were made by Judge Marovitz in the recent case of Karczewski v. Baltimore and Ohio Railroad Co. (D.C.N.D.Ill., 1967), 274 F.*853Supp. 169. At 179-180, the court concluded :
“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.
“It is not relevant to say that because all wives are similarly situated all are equally protected. For that is to ill-define the relevant classification. In these circumstances, all married people, husband and wives, must comprise the class to be protected. That is because each has an equal interest in the elements of the marital relationship which are protected by the action for loss of consortium. To deny it to wives is a classification without reason, is arbitrary, and is consequently a violation of the Equal Protection Clause of the Fourteenth Amendment.”
See also to the same effect, Owen v. Illinois Baking Corp. (W.D.Mich.1966), 260 F.Supp. 820, similarly involving the Indiana law with respect to a wife’s loss of consortium. To the same effect is the recent decision of the New York Court of Appeals in Millington v. Southeastern Elevator Company et al., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897, where Judge Keating said:
“* * * the mental and emotional anguish caused by seeing a healthy, loving companionable mate turned into a shell of a person is real enough. * * * The loss of companionship, emotional support, love, felicity and sexual relations are real injuries. The trauma of having to care for a permanent invalid is known to have caused mental illness. There may not be a deterioration in the marital relationship, but it will certainly alter it in a tragic way. * * *”
The acceptance of this view is further indicated by the April 2, 1968 decision of the Court of Appeals of Franklin County, Ohio, Leffler v. Wiley,2 disposing of the appeal of Mrs. Leffler who had joined with her husband in a suit for damages. The trial court held that, although a husband can recover for the loss of his wife’s services and consortium, yet a wife cannot recover for the loss of her husband’s loss of services and consortium. On appeal she contended that this action deprived her of equal protection of the laws.
In the Leffler opinion, it was said:
“* * * However, regardless of whether it be incidental or independent, the common law of Ohio does recognize loss of consortium as an item of damages recoverable by a husband.
“If a statute were to affirmatively create such a right in a husband and yet deny it to a wife, such a classification based on sex alone would violate * * * the Fourteenth Amendment to the Constitution of the United States. The common-law distinction between husband and wife in regard to consortium is equally based upon an unreasonable, discredited concept of the subservience of the wife to her husband. The courts should not perpetuate in the common law a discrimination that could not constitutionally be created by statute. [Italics supplied.]
“In our opinion, loss of consortium is an item of damage to a wife exactly to the same extent as to the husband. We hold that her legal rights to recover are equal to those of her husband. The demurrer should have been overruled.
*854• “The judgment of the Common Pleas Court will be reversed and the cause remanded for further proceedings.”
In view of Indiana’s patent discrimination, it was error for the district court in the case at bar to dismiss plaintiff's complaint. I can find no justification in reason or law for this unjust result. Accordingly, I would reverse the judgment of the district court, and grant plaintiff a trial upon the merits of her complaint.
. Hitaffer was overruled by the same court only with respect to its interpretation of the exclusivity of the remedy provided by § 5 of the Longshoremen and Harbor Workers’ Act — 33 U.S.C. § 905. See Smither and Company, Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220 (1957), cert. den. 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129 (1957). Thus the relevance of Hitaffer to the case at bar remains unimpaired.
. 15 Ohio App.2d 67, 239 N.E.2d 235.