(dissenting).
I find myself wholly unable to concur in the principal opinion. That opinion follows an admittedly minority view which originated in 1950, and which, to me, has no such force or logic as to make it at all impelling. The theory was firmly rejected by this Court in Banc in 1918 in Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, and, except for an apparent desire to renovate the law and create new actions, I see nothing to suggest a total turnabout now, or to make such action desirable.
As a practical matter, we know that substantially all such suits by wives would be filed as separate and subsequent suits in which they would hope for greater damages than if joined with the husbands’ suits. Further, as a practical matter, it would be virtually impossible to prevent substantial duplication and overlapping of damages in the two suits. The loss of “consortium” has been and is, at best, a vague and nebulous thing; any possible recovery by the wife would be based upon the identical injuries for which the husband had fully recovered. In his suit he would presumably recover not only for his physical injuries and disability, pain, physical and mental suffering, loss of earnings (and consequent loss or lessening of his ability to support the wife), but also for the loss of his ability to consort and associate normally with his wife, and all expenses, past, present and future. It has heretofore proved most difficult to keep the submission of all these elements reasonably straight, even in one case. The majority opinion asserts that the recovery of double damages could be “avoided by delineating accurately the items properly in-cludable in the husband’s damages and by permitting the wife in her separate action to recover for the loss of only those elements of consortium which, under the facts of the particular case, represent separate and dis*548tinct losses to her.” A reference to some of the items of damages in the petition gives some indication of how unrealistic this statement is. After reciting alleged specific injuries to the husband covering nearly two pages of the transcript, the petition alleges that the plaintiff has been and will be in the future “deprived of the consortium and love and affection and support of her husband” ; that “prior to his injury * * * she was entirely dependent upon him for support and the necessities of life”; that her husband has been reduced to “a physical and psychological wreck”; that she has and will “be deprived of normal conjugal affection and of his comfort and society and of his aid and companionship”; and that she will “be required to tend and care for him and to nurse and provide for him and to undertake his share of the management of their family and the upbringing of their children.” The judge who is able to avoid double damages by “accurately delineating” the items that the husband has recovered or will recover in another action in another court, and correctly instruct the jury on the items of damages properly recoverable in this particular case will indeed need the wisdom of a Solomon, not to mention the utter confusion of the juries. The reason for these difficulties is that we are dealing mostly with intangibles in the gray areas that are neither black nor white and in which the line of demarcation is largely imaginary and difficult to draw even for the trained legal mind. The difficulty cannot be avoided by passing on to the jury such vague and unfamiliar terms as “consortium”, “conjugal rights”, and “conjugal affections”. While damages in personal injury cases cannot be measured by fixed standards, they should not rest on speculation and conjecture. The policy of the law is to restrict items of damage to those which can be measured rather definitely by a money value rather than to enlarge on them. In so far as we have been able to observe, where the legislature has acted it has not permitted any recovery for loss of services or consortium. Thus, the wrongful death action contemplates pecuniary injury or benefit as the basis of the right of action. Section 537.090, RSMo 1959, V.A.M.S.; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 954 [6], 145 A.L.R. 1176; Szofran v. Century Electric Co., Mo.App., 255 S.W.2d 443, 450 [10]; Wilt v. Moody, Mo., 254 S.W.2d 15, 19 [5,6]. The Workmen’s Compensation Law, which largely supplanted master and servant negligence cases, provides fixed, pecuniary schedules of recovery. Sections 287.190, 287.200, 287.240, RSMo 1959, V.A.M.S. And if, perchance, the legislature should choose to enact any other compensation law or laws to replace existing tort actions in other fields, it does not appear likely that it would provide damages for loss of consortium or services. The overburdening of our existing personal injury actions with fringe benefits might hasten the day when the legislature would so act. Adequate compensation can be obtained within the framework of existing actions. If the right of recovery is extended to the wife in a lawsuit such as this, we can see no reasonable ground for not granting it eventually to children and perhaps parents or others similarly situated.
The Married Women’s Act1 simply gave to a wife a separate legal existence; it gave her the right to sue for and control her real and personal property, to contract with respect thereto, and thus to have a right of action for “violation of her personal rights.” Generally, the Act did not create new causes or rights of action but merely released married women of restrictions which the common law had imposed. It is my view that such a right of action as is here sought is not one based upon an injury to the personal rights of the wife and that it is not supported by the Married Women’s Act. The emancipation of women by the Married Women’s Act from the domination and virtual ownership of their husbands, *549effectively argues for the abolition of the right of action now existing in the husband, for he no longer owns her or her services or her earnings and the idea is somewhat archaic.
Instead of extending the right to recover for consortium, this court should consider limiting or abolishing the right where it exists. We need not consider exhaustively the effect of the Married Women’s Act and the trend to the complete emancipation of women both socially and economically, but enough is readily apparent to indicate that the reasons which gave rise to the common-law action no longer exist. For example, this court has decided that the husband’s common-law right to damages for loss of his wife’s services and consortium resulting from her employer’s negligence has been extinguished by the Workmen’s Compensation Act where the wife has received compensation. Sections 287.020, 287.090, 287.-110 and 287.120, RSMo 1959, V.A.M.S.; Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 622 [3 & 4], 104 A.L.R. 339; Sharp v. Producers’ Produce Co., 226 Mo.App. 189, 47 S.W.2d 242, 244 [3, 4]. The Holder case further decides that the destruction of the right of action is not unconstitutional.
It is just as logical to say that the Married Women’s Act abolished the husband’s right to sue for loss of services and consortium where the wife has sued and recovered compensation in a negligence action for identical or related items of damages. By statute the State of Kansas has expressly provided that the right of action to recover for a wife’s loss of ability to perform services "shall vest solely in her” and that her recovery, in so far as it is based upon the loss or impairment of her ability to perform services in the household and in discharge of her domestic duties, shall be for the benefit of her husband “so far as he shall be entitled thereto.” Kansas, G.S.1949, 23-205; Cornett v. City of Neodesha, 187 Kan. 60, 353 P.2d 975, 977 [2]. It would seem that a married couple could be trusted to recover and share the items of damage in which they have a joint or common interest. Consortium seems to be a relic of the times when only the husband was considered to have any such right and his recovery was for both. To require a court and jury to divide and apportion the right is asking them to do something which is next to impossible and wholly unnecessary, since each spouse may now sue for his or her physical injuries and recover adequate damages in such action. The recent case of Croker v. Consolidated Service Car Co., Mo., 365 S.W.2d 524 (decided February 11, 1963) illustrates the complexities which arise under our Married Women’s Act, even as heretofore construed. Our efforts should be devoted to avoiding conflicting and overlapping claims rather than creating more of them.
The alienation of affection cases cited in the majority opinion are of no particular consequence in this case. An alienation of affections case is an intentional and willful tort. Sandler v. Schmidt, Mo., 263 S.W.2d 35, 38 [4]. Such an action is one based upon a direct injury to the wife; it is not one tacked on to a right of action resting solely in the husband for his own injuries. Mental distress and anxiety can generally be recovered where the tort is willful and intentional, but not in a simple negligence case unless the person suing has also suffered physical injuries. Then, too, an alienation case does not present the problem of dividing damages for consortium, with the possibility of double recovery.
The opinion in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, from which the majority opinion quotes an exhortation, actually demonstrates the real lack of reason in permitting any separate action for consortium. As one dissenting judge said (there were three) : “It is no more than an historical accident that the husband’s common-law action survived the enactment of the Married Women’s Act.” 170 N.E.2d *550loc. cit. 893. If by reason of the Married Women’s Act the court has the power to create a cause of action, it must also have the right to require that the injured spouse recover for all the damages resulting from loss of consortium or services, or both. The day is long since past where distinctions could be made on the basis that a woman’s place was in the home and only the husband worked elsewhere. Today’s husbands help with the housework and wives take employment in business and industry. Every trial lawyer has heard testimony in personal injury suits that the casualty has adversely affected not only the physical vigor of the injured spouse but also his or her mental attitude toward the other spouse and the children. The plaintiff in such an action should be entrusted with the right and duty to recover the joint or indistinguishable items of damage.
We cannot agree with the statement of the majority opinion that Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, “is clearly erroneous and manifestly wrong and should no longer be followed.” The Bernhardt case, decided in December 1918, appears to have carefully and thoroughly considered the issues and the opinion does not disclose any material matter of law or fact that was overlooked or misinterpreted. The opinion in the present case disagrees with the result and relies strongly upon alienation of affection cases. The same alienation of affection cases were considered and distinguished in the Bernhardt case. There are additional reasons why the alienation cases are distinguishable, some of which have been previously noted. We cannot agree that the Bernhardt decision is wrong, certainly it is not “clearly erroneous and manifestly wrong”. The court should proceed with caution and exercise restraint in overruling established cases, and especially in creating new causes of action or items of damage in personal injury suits. In these days of bureaucracy and of determination by administrative procedure, we are treading on dangerous ground. If the courts do not use their powers to simplify and expedite procedures and the disposition of cases, they are inviting the legislative branch to do so. If this court makes any change, it should be by way of extinguishing the husband’s action for consortium and loss of services. This would produce equality. The present procedures furnish the means for adequate compensation for injury to either spouse.
The existing rule, that a wife has no right of action for loss of her husband’s society, has been recognized throughout the judicial history of Missouri. When questioned in 1918, it was reaffirmed. It has become a matter of state policy, and the legislature has never seen fit to intervene. A change in this rule now would inevitably loosen a flood of litigation, and eventually the same rights would undoubtedly be accorded to children, parents, and other relatives. It is not primarily the duty or function of the courts to create new rights of action. They do, in aid of the normal progress of the common law, have the power to recognize the necessity for change and to move with the necessity, but that power is and should be used with great restraint. If such a radical change is to be made as is proposed here, it should be made by the legislature. Thus, if such an action be created, terms and conditions could be laid down which might make it more workable, as for instance, the joining of both causes of action in one suit and more specifically defining the nebulous basis or grounds of recovery. And as already expounded, the legislature might also wish to take a long, hard look at the existing rights of action of husbands for loss of the services, society, aid, comfort and consortium of their wives in the event of negligent injury to the wife.
Upon the final adoption of the majority opinion, at least one result will be certain; the long-suffering Missouri holders of liability insurance policies will pay still more premiums; upon them and upon the already overburdened courts will fall the greatest grief of this fallacious idea.
. Now Sections 451.250-451.300, RSMo 1959, V.A.M.S.