Argued June 6, 1963
Affirmed July 31, 1963 Petition for rehearing denied September 4, 1963
Appeal from the Circuit Court, Multnomah Count, PAUL R. HARRIS, Judge.
Reuben Lenske, Portland, argued the cause and filed a brief for appellant.
Frederic P. Roehr, Portland, argued the cause for respondent. With him on the brief were Vergeer Samuels, Portland.
Before PERRY, Presiding Justice, and O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
This is an action by a husband for loss of consortium. The wife had previously obtained a judgment for damages for personal injuries against the defendant. The plaintiff-husband assigns as error the trial court's refusal to hold that the judgment in the wife's action finally adjudicated the question of negligence and contributory negligence. This contention was rejected in Wolff v. Du Puis, 233 Or. 317, 378 P.2d 707, decided after the briefs had been filed in this case.
At oral argument plaintiff urged that the case should be reversed and remanded because the trial court submitted the issue of the wife's contributory negligence to the jury. Plaintiff argued that Wolff v. Du Puis, supra, held that an action for loss of consortium is not a derivative action; therefore, the contributory negligence of the wife would not bar a loss of consortium action by the husband.
We do not decide this issue. The trial court's action in this regard was not made the subject of an assignment of error. No transcript of the trial was filed; so the trial court's instructions to the jury upon the issue of the wife's contributory negligence are unknown.