This is an action for damages arising from a rear-end-type automobile accident. The case was tried to the court and jury and a verdict returned. The issues on appeal deal not with the causal negligence of the two drivers but with the validity of the verdict as to the damage questions.

On August 2, 1968, at 5 p.m., Gilbert Steinagel, a defendant in the trial court but not a party to this appeal, was driving his 1959 Chevrolet station wagon north on U.S. Highway 51 near the intersection of County Trunk A, about five miles north of Wausau. Passengers in the car with Steinagel were Lorna Utecht, plaintiff-appellant in this matter, who was sitting in the center of the front seat, and Fred Duwie, who was sitting in the front right seat.

At the intersection, Steinagel stopped his car in the left lane of the two northbound lanes in order to make a left turn to proceed west on "A." Steinagel claimed that he turned his left-turn signals on as he stopped and waited for the southbound traffic to go by.

Jo Ann Johnson, defendant-respondent, was driving north on Highway 51 at the same time as Steinagel. When Steinagel stopped, both Miss Johnson's car and a car preceding her were in the same lane as the Steinagel vehicle. The unknown car veered into the right lane and passed the Steinagel car. Miss Johnson then saw the Steinagel car for the first time, attempted to swerve to the right to avoid it, but failed and scraped Steinagel's right rear fender with her left rear fender. Miss Johnson testified that at the time of impact she might have been going more than 50 miles per hour. The force of the impact thrust the Steinagel car forward. It rolled across the intersection, where it came to rest in the same northbound lane in which it had stopped before the accident.

Both vehicles were driven away by their respective drivers after the accident. Damage to the Johnson vehicle was estimated at $475 by the traffic officer, although the repairs later cost slightly over $100. Damage to the Steinagel car was estimated at about $75.

Steinagel described the actual contact of the two cars as a slight impact. Duwie, the third passenger in the Steinagel car, testified that the contact was a glancing, light blow.

Duwie testified that he was not thrown forward in the Steinagel car by the accident. Both Lorna Utecht and Steinagel also stated that neither of them had been thrown about in the car by the impact.

No one claimed to be injured at the accident scene. The traffic officer wrote "no injuries" on his accident report. Mrs. Utecht told Jo Ann that she was not injured but she stated that she had just gotten out of the hospital and that the accident would not do her any good. Jo Ann Johnson was not injured, nor was Duwie.

After the accident Steinagel drove Lorna Utecht to St. Mary's Hospital in Wausau where Dr. Balliet, who had been her physician for some fifteen years, checked her over on an outpatient basis. After Dr. Balliet examined her, Lorna Utecht and Steinagel drove to the Steinagel tavern where she waited on table serving beer and fish fries all evening.

Mrs. Utecht testified that on the morning following the accident she felt stiff and sore in her neck and back. She went to see Dr. Balliet about once a week until she was hospitalized on August 19, 1968. During her stay she received diathermy, massage and heat therapy. After her release on August 28, 1968, she received physical therapy treatments on an outpatient basis three times a week until she was hospitalized again on October 12, 1968, again for a period of nine days. She was released on October 21, 1968. During her second stay in the hospital following the accident she received both physical therapy treatments and medication.

On October 21, 1968, Mrs. Utecht was admitted to Madison General Hospital in Madison, Wisconsin, where she was attended by Dr. Balliet and Dr. Henry Suckle, a neurosurgeon. She remained in Madison General Hospital for five days.

On October 28, 1968, she was readmitted to St. Mary's Hospital in Wausau and remained in the hospital until November 18, 1968. She received diathermy and ultrasound with massage and whirlpool treatments. She was placed in traction and was made to wear a corset, presumably to support her back.

On the morning of January 16, 1969, Mrs. Utecht became dizzy in her bathroom, fell and fractured two ribs when she fell on the bathroom scale. She spent eleven days in the hospital, being released on January 27, 1969.

In her adverse examination prior to trial Mrs. Utecht denied that she had had any prior accidents, hospitalization, treatment or ailment during the ten years previous to the August 2, 1968 accident, except for treatment of varicose veins in her legs during June of 1968.

However, the record revealed, and on cross-examination, Mrs. Utecht admitted to an extensive medical history which is well summarized by the respondents:

"1956-57 — She complained of pain in her neck, back and chin which was diagnosed as degenerative arthritis. She was treated by Dr. Balliet on February 4, 1957, and July, 1957, for these conditions.

"June 12, 1957 — She fell and hit her head, complained of pain in her neck, back and shoulder.

"July 22, 1957 — She complained to Dr. Balliet of pain on movement of her neck and back, dizziness, nervousness and `head spinning.'

"April 11, 1958 — She complained of aching in her neck and back.

"November 4, 1958 — She fell going up some steps and injured her left leg.

"July, 1960 — She complained of chest pains, strain of left shoulder.

"June, 1962 — After a minor car accident she complained of pain across her neck and back upon movement, nervousness and weakness. Dr. Balliet diagnosed a lumbar strain, a strain of the neck and degenerative arthritis. Dr. Balliet testified that her complaints of June of 1962 were the same as she had in August of 1968 following this accident.

"1964 — She repeatedly complained to Dr. Balliet of pain in her back after slipping on ice, of blurring of vision, dizzy spells, unable to bend over to do her housework, and received hospital treatments including muscle relaxants and physiotherapy for degenerative arthritis.

"November 1966 — She fell on steps and had a contusion and strain of left shoulder.

"June 2, 1968 — Two and one-half months before the accident here involved she was hospitalized for four days because of complaints of pain in the lumbosacral area, dizziness, spots in front of her eyes, `shortness of breath, tired, weak and dizzy condition for several years.'"

Dr. Balliet testified that he diagnosed Mrs. Utecht's difficulty as a cervical and lumbar strain from the auto accident, tendonitis from the neck to the shoulder. At one point Dr. Balliet testified that the accident had become a fixation with her. He also testified that X rays taken prior to the night of the accident revealed that she had degenerative arthritis of long standing and that such condition would probably get worse with time. Balliet also testified that the X ray taken twelve days after the accident revealed the arthritis but no bone fractures.

Dr. Henry Suckle's deposition was read into the record. He testified that when he first examined Mrs. Utecht in October of 1968, he came to the following diagnosis:

"A. I thought that she had a myofascial strain.

"Q. What is a myofascial strain?

"A. That is a strain of the muscles and the tendons of the area involved, in which these structures have been stretched and by the stretching have been injured and in doing so become painful. They will cause anything from pain to restriction of motion or muscle spasms or they can go on to further degrees but in this case it was just the pain, the restriction of motion of the neck and also the relation of pain to the extremities."

He also testified that the accident of August 2, 1968, aggravated a pre-existing condition that had existed since 1962. He further stated that in Mrs. Utecht's case there was a "fixation or psychological components here and she's concerned about the continuation of her symptoms" and this was why her case was so prolonged.

Dr. Roy Larsen then testified for the defense. He had examined Mrs. Utecht approximately one week before the trial began. He stated that the X rays taken the night of the accident and those taken two years later revealed the same degenerative arthritis in her neck and back and that her arthritic condition remained approximately constant for two years. He testified that the arthritic condition was not a result of the accident.

However, Dr. Larsen testified under cross-examination that he felt Mrs. Utecht had sustained a soft tissue injury and an aggravation of the arthritis as a result of the August 2, 1968 accident. Dr. Larsen also brought out a consulting opinion by Dr. T. O. Miller, an orthopedic surgeon which, over objection by the defense., was admitted into evidence. Dr. Miller found that Mrs. Utecht had suffered soft tissue injury to the cervical spine and to the lumbar spine.

This action was commenced on August 7, 1969. Mrs. Utecht sued for damages as a result of injuries incurred in the accident of August 2, 1968. Clarence Utecht sued for medical expenses and loss of Mrs. Utecht's services, society and companionship. On September 9 and 10, 1970, the action was tried by the court and a jury. The jury by its verdict found Gilbert Steinagel not negligent in the manner in which he operated his car. The jury found Jo Ann Johnson negligent, that her negligence was a cause of the collision, and that 100 percent negligence should be attributed to her.

The medical bills were $4,880.93. The testimony was that this expenditure was fair and reasonable and necessary for treatment for her complaints of injury. The jury awarded Clarence Utecht $1,000 for his damages for medical expenses. Two jurors dissented. The jury did not award Clarence Utecht any damages for loss of society, services and companionship, nor did it award any damages to Mrs. Utecht for her personal injuries. Two different jurors dissented as to these results.

The plaintiffs moved for a new trial in their motions after verdict. The trial court, in an opinion dated November 18, 1970, stated that it felt that Clarence Utecht deserved a new trial and that the court would so order.

However, the court reconsidered its decision because it felt that the order of November 18, 1970, could not be entered as it had not been timely decided. Sec. 270.49, Stats., provides:

" Motion for new trial. (1) A party may move to set aside a verdict and for a new trial because of errors in the trial or because the verdict is contrary to law or to the evidence, or for excessive or inadequate damages or in the interest of justice; but such motion must be made and heard within 2 months after the verdict is rendered, unless the court by order made before its expiration extends such time for cause. Such motion, if not decided within the time allowed therefor, shall be deemed overruled. In case judgment is entered without deciding a pending motion for a new trial, the supreme court may direct the trial court to determine such motion within 2 months after filing the remittitur in the trial court."

The court then entered judgment on the original jury verdict, although the trial judge stated that both plaintiffs should probably have the benefit of a new trial.

Plaintiffs appeal from the part of the verdict regarding damages as to both Lorna and Clarence Utecht. The defendants Jo Ann Johnson and Allstate Insurance Company are the only respondents.

BEILFUSS, J.

The appellants contend the verdict is inconsistent and invalid under the statutory five-sixths rule.

The respondents argue that the claims for damage by the appellant-husband constitute a separate cause of action and that the verdict is not inconsistent nor invalid under the five-sixths rule.

The respondents assert that Clarence Utecht's cause of action is separate from that of his wife by virtue of ch. 246, Stats., which provides that a married woman may sue in her own name, including claims for personal injuries and damages. Further, sec. 246.07 provides that a husband can maintain a separate action for any losses or damages sustained by him.

Although the husband's cause of action for medical expenses and his loss or consortium can and should be stated separately, in this case it is derivative. Success in his suit for damages depends on whether Lorna Utecht sustained a compensable injury in the automobile accident of August 2, 1968.

This court in Sulkowski v. Schaefer (1966), 31 Wis.2d 600, 143 N.W.2d 512, stated at page 608:

"It is the general rule that a plaintiff who has been injured by tortious conduct is entitled to recover the reasonable value of medical and similar services reasonably required by the injury. This is simply an element of damages for the tort. Wisconsin follows this rule, generally, but recognizes that where the injured person is a minor child or married woman, the tort creates in the parent or husband a cause of action for the value of the care made necessary by the wrongful act and such element of damages may not be included in the recovery of the injured person."

Also in Stuart v. Winnie (1935), 217 Wis. 298, 258 N.W. 611, this court said at page 305:

". . . As was then held, the husband's loss, due to the loss of his wife's services and to his expenditures for her medical treatment, etc., arise out of her cause of action for the tort which caused personal injury to her; and, but for the existing marital relation and his resulting obligations and rights, she alone would be entitled to recover for the loss sustained on account of those items. . . ."

Because the husband's cause of action is derivative and dependent upon his wife's injury, if, in the trial, she fails to persuade the jury that she was injured, then of necessity his cause of action must fail. He cannot recover damages because of an injury the jury found to be nonexistent.

In this case the jury in effect found the wife was injured in the accident when it awarded the husband $1,000 for medical expenses for treatment of that injury. It further found in effect that she was not injured when it returned a verdict finding she was not entitled to any compensation for personal injuries. The verdict is inconsistent and upon this ground alone a new trial must be ordered.

We are of the further opinion the verdict must be set aside and a new trial ordered because the verdict does not comply with the five-sixths statute.

The damage questions of the verdict are as follows:

"Sixth Question:

"What sum of money will fairly and reasonably compensate the plaintiff, Clarence Utecht, for his damages, if any, resulting from the collision with respect to:

(or forelady) Roland Schultz 6 A Al Mathieson 6 A Edward Duginske Ervin Stubbe

Conversely, ten jurors found that Clarence Utecht was entitled to $1,000 for medical expenses resulting from the collision. Respondents claim this is a fair figure for determining if Lorna Utecht was in fact injured, but this argument leads to an illogical conclusion. Question 6 (a) of the jury verdict was phrased solely in terms of medical expenses arising as a result of Lorna Utecht's injuries. This is made clear by reference to the instructions given to the jury by the trial court, which stated:

"In your answer to subdivision (a) of the sixth question, which concerns the medical expense, you will insert such sum as you find will fairly and reasonably compensate the plaintiff, Clarence Utecht, for medical, hospital and drug expenses necessarily and reasonably required in the treatment of his wife up to this time for any injuries sustained by her as a natural result of the collision in question and not from any other cause."

In effect, ten jurors in 6 (a) found that Lorna Utecht suffered $1,000 worth of injuries for which Clarence Utecht was legally entitled to compensation. Two jurors dissented as to this conclusion. It is not clear whether those two jurors would have given Clarence Utecht more or less than $1,000. As such, the "only more so" rule of Lorbecki v. King (1971), 49 Wis.2d 463, 182 N.W.2d 226, is not applicable to this case since it is not conclusive that the two dissenting jurors would have given Clarence Utecht less than $1,000.

Therefore, the jury's answers to questions 6 (a) and 7 are in irreconcilable conflict because while the jury found no injury to Lorna Utecht it awarded Clarence Utecht a $1,000 award, which could validly be based only upon a jury finding that Lorna Utecht was injured.

The defendants-respondents argue that under the statute the five-sixths requirement applies separately and independently to each cause of action and that because the two plaintiffs have separate causes of action the verdict does not offend the statute. This argument might be persuasive in a proper case but here we have determined that the husband's cause of action is derivative and dependent on the wife's cause of action insofar as her claim that she was injured is concerned. The same ten jurors have not agreed she was injured in the accident.

We conclude the verdict is inconsistent and in violation of the five-sixths rule of sec. 270.25(1), Stats. Therefore a new trial on the issue of damages must be ordered.

By the Court. — Judgment reversed and a new trial ordered consistent with the opinion.