dissenting.
The majority opinion admits that “the commentators and modern text writers have been * * * unanimous in condemning the reasoning and the result reached by the courts” in holding that the spouse’s contributory negligence is a bar to an action for loss of consortium.① The only answer to this criticism *440seems to be that “ [h] aving been settled, and since we find in ourselves no disposition to change it, we abide by the settled rule.”
This does not answer the criticism levied against the rule, and it does not discharge our responsibility as an appellate court to recognize only those principles of law that can be supported by sound reason. The majority opinion obliquely refers to possible grounds for the accepted rule by suggesting that “it may” be that “the courts” do not want “to permit a family to team up against a third party.”② The opinion does not indicate whether this court agrees with the rationale which it says “may” move a court to choose the “settled rule.”
Assuming that the reference to such reasoning is an endorsement of it, I believe that the critics have answered it. I do not think that any good purpose would be served by summarizing these answers in this dissent.
The majority would make it appear that it has chosen “justice” whereas the critics have chosen the bare “symmetry of the law.” The writings reveal that the arguments for abolishing the rule are more than an insistence upon logical consistency alone. But even if it were conceded that this is all that the critics have to offer, they are entitled to have us explain why it is just to permit a wife to recover damages for personal injuries or injury to property in spite of her husband’s contributory negligence, but that it is unjust to permit her to recover when she seeks damages for loss of *441consortium because her husband was contributorily negligent. The majority opinion does not attempt to explain this glaring inconsistency. The difference cannot be made to rest upon the ground that actions for personal injury and property damage are independent and actions for loss of consortium are derivative. We have already decided in Wolff v. DuPuis, 233 Or 317, 378 P2d 707 (1963) that the latter action is non-derivative.
Why, then, do we treat two non-derivative actions differently? The same reasons for employing or not employing contributory negligence are applicable to both class of cases. If that is barren logic divorced from “justice” then I would say that we are guilty of employing it in nearly every case we decide, because we try not to use distinctions without differences.
It appears to me that the majority opinion comes down to this: We do not favor actions for the recovery of loss of consortium and so we bar them by allowing the defense of contributory negligence. I might join in this piece of judicial legislation if it were not for the fact that the legislature has already pre-empted the field (ORS 108.010) and has given us no reason to assume that actions for loss of service should be treated with any less favor than actions for other losses where the plaintiff’s spouse is contributorily negligent.
I dissent.
Sloan and Denecke, JJ. join in this dissent.See the extensive list of authorities cited in the majority opinion. The suggestion that at least one court may be prepared to depart from the majority rule is found in Self v. Self, 58 Cal2d 683, 691, 376 P2d 65, 70 (1962) (describing the majority rule as unjust).
And the majority further states that “It may be that the operation of the rules of contributory negligence which gives the victor all or nothing is a weakness in the textbook writer’s logic.” Frankly, I must admit that I do not know what this statement means or what it proves one way or the other in evaluating the rule urged by the legal commentators.