266 F. Supp. 671 (D. Mont. 1967)
Gene Owens Hall was seriously injured by reason of the negligence of the United States, but was denied recovery because of his own contributory negligence.1
His wife, Josephine Hall, was denied recovery for loss of consortium.2
Now Josephine Hall moves for a new trial or in the alternative to amend the findings and conclusions heretofore entered to permit her to recover for loss of consortium.3
The question has not been specifically answered by the Montana Supreme Court.4
The proceedings are before the United States District Court for the District of Montana with District Judge Russell E. Smith presiding.56
Whether a wife may sue a negligent third person for loss of consortium where the husband was himself contributorily negligent?7
At common law the contributory negligence of the wife defeated the husband’s right, and in those jurisdictions recognizing the wife’s right to sue for loss of consortium the contributory negligence of the husband defeated that right.8
No. Gene Owens Hall was denied recovery because of his own contributory negligence and Josephine Hall was denied recovery for loss of consortium.9 The court applied the common law rule barring the loss of consortium claim due to the husband's contributory negligence and determined that the Montana Supreme Court would follow case law rather than scholarly criticism, consistent with Montana's bar on recovery in wrongful death actions where contributory negligence is present.10
Josephine Hall may not recover for loss of consortium because the husband's contributory negligence defeats the claim under the rule that Montana would adopt.11