Aleene Cline v. Carthage Crushed Limestone

On November 26, 1971 Aleene Cline appealed from an order dismissing with prejudice her separate suit for $50,000 for loss of marital services and personal nursing care as a result of injuries suffered by her husband due to the alleged negligence of Carthage Crushed Limestone Company. Her husband had previously filed a separate suit for $250,000 damages against the limestone company; a suit in which she did not join as a party plaintiff. The limestone company's motion to dismiss was sustained on the ground that plaintiff's cause of action ""is a derivative claim which failed to join with a previously filed case concerning husband."" The court acted on the basis of Rule 66.01 (c), which provided as follows at the time of the alleged injuries to the husband on April 20, 1968: ""(c) *** If an injury, not resulting in death, is inflicted upon the person of one spouse, and causes of action therefor accrue to the injured spouse and also to the other spouse for loss of consortium and services, or either, they shall be enforced in one action brought by both spouses. The cause of action of a spouse so required to join in an action as a party plaintiff under this Rule shall be barred by failing to join therein after the defendant has given to such spouse thirty days' notice in writing of the pendency of the action and of the necessity to join therein; such notice shall be given either by personal service within or without the state and proof thereof by the return of an officer or by affidavit, or by the filing of a United States Post Office Registry receipt signed by such spouse. If such service cannot be obtained, then the Court may in its discretion stay the pending proceeding.""