(concurring specially).
At common law no cause of action existed in the wife for loss of consortium of her husband.
The common law of England was adopted in this State. Section 3, Title 1, Code of Alabama 1940, Recompiled 1958, provides:
“The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature.” (Emphasis added.)
This statute does not provide that “the common law of England shall be the rule of decisions in Alabama unless changed by the legislature.” On the contrary, it provides that the common law of'England shall be the rule of decisions in this State, so far as the common law is not incon*447sistent with the constitution, the laws, and the institutions of Alabama.
Article 1, § 1, Constitution of Alabama provides that,
“. . . all men are equally free and independent . . . endowed by their Creator with certain inalienable rights among these are life, liberty and the pursuit of happiness.”
This court in 1871 recognized that the words, “all men are equally free” includes persons of both sexes. O’Neal v. Robinson, 45 Ala. 526 (1871). The court said that the common law rule of a wife being inferior to her husband was no longer valid. But even today, 103 years later, there is imbedded in some legal minds who worship the shrine of the common law, the honest notion that the wife is still inferior to her husband and should not be considered an equal in the rights of liberty, life, and the pursuit of happiness.
The fundamental law has changed the institutions of the United States and the State of Alabama. We look to humane reasons as well as a deep sense of right. Equal justice under the law are not just empty words appearing over the county courthouse door.
Change in our society is inevitable. In fact, the only thing constant in our society is change. And, the law should keep pace with the changes. The doctrine of stare decisis is not an ironclad, immovable institution of the law, which holds there can never be changes in the law. When the reason for the rule disappears, there is no longer any necessity for the rule.
The apparent reason for the common law rule denying the wife an action for loss of consortium was the fact that under the common law the husband was considered to be superior to the wife in the marital relationship. She was a chattel of the husband. For better or worse, that is no longer true. Ancient ideas that are not justified in our present society must be rejected. Wives are now, in the eyes of the law, equal partners in the marriage. Neither the husband nor the wife is considered the inferior of the other.
The dissenting opinion says that any change for permitting a wife to bring an action for loss of consortium should rest with the legislature. The legislature could, of course, take action. But, this court would abdicate its role if it refused to reconsider an old and unsatisfactory court-made rule. See Gates v. Foley, 247 So.2d 40 (Fla. 1971); Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 239 N.E.2d 897, 293 N.Y.S.2d 305, 36 A.L.R.3d 891 (1968).
There is another compelling reason for reconsidering the question now presented to this court — the Constitution. In Smith the court did not consider the Constitutional issue. Smith denied the wife an action for loss of consortium because the common law rule had not been changed by the legislature, plus the authority of Ripley v. Ewell, 61 So.2d 420 (Fla.1952). The Supreme Court of Florida overruled Ripley in Gates. Therefore, one of the legs of Smith has been severed. The other one is due for immediate surgery. The common law rule denying a wife the right to maintain an action for loss of consortium is not consistent with Article 1, § 1, Constitution of Alabama. If the Constitution is to be given a just meaning, this Article and Section must be interpreted as meaning the wife is the peer and equal of the husband in the rights of life, liberty, and the pursuit of happiness. Consequently, the wife now has the right to bring an action for loss of consortium of her husband arising from the wantonness or negligence of a third party tort feasor.
The appellees argue that to award a wife recovery for loss of consortium will amount to a double recovery of damages. It will not, of course, if properly handled by counsel and the trial court. Under Rule 20, Alabama Rules of Civil Procedure, the wife may join in the action brought by the injured husband, as a plaintiff and assert her right for loss of consortium, provided her claim has not been barred by passage *448of time. If a separate suit is brought by the wife, her case can be consolidated with the injured husband’s case under Rule 42, A.R.C.P. Furthermore, the defendant, under Rule 19, A.R.C.P., may join the wife as a proper party to the action brought by her husband, if she has not filed in her own behalf. And, where the husband’s case has been terminated on the merits adversely to him, the wife’s right to recover for loss of consortium is barred. This is necessarily true because her action is derivative merely and the spouse’s being in privity, the judgment in the husband’s case is res judicata as to her. See Sisemore v. Neal, 236 Ark. 574, 367 S.W.2d 417, 12 A.L.R.3d 929 (1963).
Under Rule 49, A.R.C.P., the trial court can make use of special verdicts or interrogatories to the jury, compelling the jury to designate the amount of damages awarded the husband for his injuries, and the amount of damages awarded the wife for loss of her injured husband’s consortium.
Finally, the trial court should instruct the jury that the wife is entitled to recover only for loss of consortium which I define as loss of sexual relations, affection, solace, comfort, fellowship and companionship of the husband and wife, and the aid of the one to the other in every conjugal relation. The jury should also be instructed that an award for loss of consortium does not include any loss to the wife for material support of her husband.