Albertson v. Travis

576 P.2d 1090, 2 Kan. App. 2d 153, 1978 Kan. App. LEXIS 141

• Court: Court of Appeals of Kansas
• Decided: March 31, 1978
• Docket: 49,106
• Status: Published

Opinions

Parks, J.:

Appellant, Sara Albertson, seeks to intervene in a personal injury suit brought by her husband, Glyn Dean Albert-son, and to file a cross-claim against him for failure to assert a claim in her behalf for loss of consortium. Her motion was denied and she appeals from that order. Although the Albertsons are now divorced, we continue to identify them as husband and wife because this appeal relates to events which occurred during their marriage.

Appellees are Glyn Dean Albertson and the defendant in the personal injury suit, Vernon L. Travis.

While this appeal was being processed, the trial court entered a judgment in favor of the plaintiff husband. Subsequently, appellee Travis filed a motion to dismiss this appeal as being moot. His motion is denied. Under K.S.A. 60-2102(o)(4), an order denying an application to intervene is an appealable order. Here a timely appeal from a final order of the district court was filed by the appellant. We conclude that her appeal is properly before this court. Campbell American Legion v. Wade, 210 Kan. 537, 502 P.2d 773 (1972).

A question has also been raised concerning the statement of proceedings filed pursuant to Rule No. 3.04. We have determined that the appeal should be heard on its merits.

We will first consider whether under the facts of this case the wife whose husband fails or refuses to assert a claim for her benefit may intervene in a personal injury suit demanding damages for loss of consortium.

On December 6, 1975, Glyn Albertson sustained personal injuries which allegedly caused the loss or impairment of his ability to perform services for his wife. The then controlling statute, K.S.A. 23-205, made no provision for a husband to recover damages for loss of consortium for the benefit of his wife.

Eleven years earlier the Kansas Supreme Court had expressly refused to extend the common law by giving the wife a cause of action for loss of consortium caused by negligent injury to her husband. The court acknowledged that the wife had no cause of action at common law for loss of consortium and that the enactment of the statute (K.S.A. 23-205) did not give her a cause of action which she did not have at common law. In Kansas, the entire damage in cases of negligent injury to a husband or father has always been considered as centering in him, and a settlement with him has always been recognized as closing the incident. Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615 (1964).

In rendering its decision, the court concluded:

“[T]he legislature rather than the courts can best deal with the problems presented. For example, the legislature, if it found this type of suit to be desirable, could define the extent of the liability, designate who may maintain the action as it did in the situation where the wife is negligently injured (G.S. 1949, 23-205), and provide safeguards against the danger of double recovery, such as a requirement that there be a joinder of the person directly injured and the one consequentially harmed. The legislature could also specify whether the proceeds should belong to the plaintiff alone or to both spouses. Clarification by statute as to both the husband and the wife would, of course, be preferable to piecemeal determination of the problems by judicial decision.” (Hoffman v. Dautel, supra at p. 422.) (Emphasis added.)

On December 6,1975, the appellant wife had no cause of action for loss of consortium and her husband had no duty or authority to recover such damages for her benefit. Accordingly, we hold that the appellant’s motion to intervene was properly denied.

We now turn to the question of whether the 1976 amendment to K.S.A. 23-205 should be applied retrospectively to permit the appellant’s intervention. In our view, it' should not.

Twelve years after Hoffman v. Dautel, supra, and one year after the injuries in the instant case were sustained, the legislature amended K.S.A. 23-205 by extending the right of action to recover damages thereunder to the husband, for the benefit of his wife.

Our Supreme Court has long adhered to the rule that a statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter. Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 568, 552 P.2d 998 (1976). See Bromfield v. Seybolt Motors, 109 N.H. 501, 256 A.2d 151 (1969); Berry v. Myrick, 260 S.C. 68, 194 S.E.2d 240 (1973); Burroughs v. Jordan, 224 Tenn. 418, 456 S.W.2d 652 (1970), which held that where the wife’s right to recover for loss of consortium is established by statute, no such right of action exists for injuries received before the effective date of the statutes.

We need not decide whether K.S.A. 60-224(a) authorizes a real party in interest to intervene in loss of consortium cases. By definition, the appellant is not a real party in interest. On December 6, 1975, she had neither a common law nor a statutory right to recover damages for loss of consortium.

Appellant’s cross-claim against her husband was properly dismissed because the law imposed no duty upon him to assert in her behalf a nonexistent claim for loss of consortium.

The question of the constitutionality of the pre-1976 version of K.S.A. 23-205 is not properly before this court. The record and counsel’s statement at oral argument disclose that this issue was not raised in the trial court. It is well settled that an issue presented for the first time on appeal will not be considered by an appellate court. Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 554, 567 P.2d 1292 (1977).

Affirmed.