concurring and dissenting:
With all due respect, I must dissent from the opinion of the majority, which appears to me to be discrimination based on sex. I prefer to subscribe to what was referred to as the modern rule in Hitaffer v. Argonne Co., Inc., 183 F.2d 811 (D.C. Cir. 1950), cert. *156denied, 340 U.S. 852, 95 L.Ed. 624, 71 S.Ct. 80 (1950), overruled on another point in Smither and Company, Inc. v. Coles, 242 F.2d 220 (D.C. Cir. 1957), cert. denied, 354 U.S. 914, 1 L.Ed.2d 1429, 77 S.Ct. 1299 (1957):
“. . . ‘The actual injury to the wife from loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation, not only of natural right, but also of a legal right arising out of the marriage relation . . . ” (183 F.2d at 816.)
The decision of the majority is based almost exclusively upon the extremely well-reasoned opinion in Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615 (1964), written by our now Chief Justice Schroeder, wherein the court did refuse to extend the common law by giving the wife a cause of action for loss or impairment of consortium caused by negligent injury to her husband. However, in doing so, it was also noted:
“Our court is committed to the proposition that the common law is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystalized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society . . . .” (192 Kan. at 414.)
The decision in Hoffman was, at the time, in accord with the position adopted by a majority of the states, but that situation is no longer true. For a thorough discussion of what has been referred to as “dramatic reversal in the weight of authority” and the need to await legislative enactment, see Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 115 Cal. Rptr. 765, 525 P.2d 669 (1974). There it was noted that in 1958 only five jurisdictions recognized the right of the wife to recover for the loss of consortium, but that since that time the number had grown to at least thirty-one, in twenty-six of which the change was brought about by judicial decision. See also, The Wife’s Right to Consortium, 14 Wash. L.J. 309 (1975); and Restatement (Second), Torts § 693, p. 495, which since Hoffman has been modified to provide:
“One who by reason of his tortious conduct is liable to one spouse for illness or other bodily harm is subject to liability to the other spouse for the resulting loss of *157the society and services of the first spouse, including impairment of capacity for sexual intercourse . . .
I agree with the majority that a statute is to operate prospectively rather than retrospectively, unless its language clearly indicates that the legislature intended the latter. However, it is suggested that the 1976 amendment to K.S.A. 23-205 merely codified what had come to be the common law of this state well before the injuries sustained by the plaintiff and, at that time, the common law did in fact recognize a cause of action in the husband for the benefit of his wife for loss or impairment of consortium resulting from the tortious injury of the husband by a third party. I suggest also that had our Kansas Supreme Court considered this matter in 1975 such would have been the holding. See Fritzson v. City of Manhattan, 215 Kan. 810, 528 P.2d 1193 (1974). As to procedural difficulties or provisions for safeguard as noted in Hoffman, it is suggested that any problems that might arise by recognizing the rights of the wife are no different in fact than problems that now exist in recognizing those of the husband.
With a recognition of the wife’s cause, all of the elements governing the right to intervene, i.e. timely application, a substantial interest, and lack of adequate representation of her interests, appear to exist. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976). That right should be liberally construed in order to protect legitimate interests. Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457 (1973).
I agree with the majority that the wife’s cross-claim against her husband was properly dismissed. It has long been the rule of this state that neither spouse may maintain an action in tort for damages against the other. Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965). It is also agreed that the constitutionality of the pre-1976 version of K.S.A. 23-205 is not properly before this court. “Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal they are not properly before the appellate court for review.” Malone v. University of Kansas Medical Center, 220 Kan. 371, Syl. 1, 552 P.2d 885 (1976). As to constitutionality of the pre-1976 version of K.S.A. 23-205, see Mann v. Golden, 428 F. Supp. 560 (D. Kan. 1977).
While fully aware that we are bound by the pronouncements of law made by our Supreme Court and that we must defer to that court for reconsideration of any doctrine of the common law, I nevertheless deem it necessary to express my views in this cause.