Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R. Co.

• Citation: 335 N.W.2d 148
• Decision Date: 15 June 1983
• Docket Number: No. 68230,AUDUBON-EXIRA,68230
• Parties: READY MIX, INC., A Corporation, and Laura Toepfer Administratrix of Harold Wilfred Toepfer, Deceased; Laura Toepfer, Individually and Scott Toepfer, A Minor by His Mother and Next Friend, Appellants, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, A Corporation, and Roy Dishman, Appellees.
• Court: United States State Supreme Court of Iowa

Page 148

335 N.W.2d 148

AUDUBON-EXIRA READY MIX, INC., A Corporation, and Laura Toepfer Administratrix of Harold Wilfred Toepfer, Deceased; Laura Toepfer, Individually and Scott Toepfer, A Minor by His Mother and Next Friend, Appellants, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, A Corporation, and Roy Dishman, Appellees.

No. 68230.

Supreme Court of Iowa.

June 15, 1983.

Thomas L. McCullough, Sac City, and Robert D. Van Horne, of Terpstra, Wilkinson & Van Horne, Cedar Rapids, for appellants.

James L. Kramer of Johnson, Erb, Latham, Gibb & Carlson, P.C., Fort Dodge, for appellees.

Considered en banc.

HARRIS, Justice.

Although there are procedural discrepancies we may treat this as an interlocutory appeal from a trial court order dismissing two claims in a wrongful death suit. Harold Toepfer was killed when a truck he was driving collided with defendant's train. Among the claims were two for loss of consortium. On defendant's motion the trial court ruled, on the basis of our decision in Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981), that the claims were not allowable. We think the claims should have been dismissed but only because by statute they belonged to decedent's legal representative.

A brief statement of the facts will suffice. A truck owned by plaintiff Audubon-Exira Ready Mix and driven by Harold Toepfer collided with an Illinois Central freight train at a crossing in Sac County, Iowa. The train was operated by defendant Dishman. Toepfer died at the scene of the accident, survived only by his wife Laura and minor son Scott. Laura was named fiduciary of his estate.

There are three counts in this wrongful death suit. At issue here, because they were dismissed, are a count for loss of spousal consortium by Laura and a count for loss of parental consortium by Scott. The question of whether these counts should be dismissed is one of law. See Bourjaily v. Johnson County, 167 N.W.2d 630, 632 (Iowa 1969).

A right to recover for loss of consortium has been recognized, at least to some extent, from the days of early common law. See Acuff v. Schmit, 248 Iowa 272, 275, 78 N.W.2d 480, 482 (1956). At one time the right was limited so that only a husband could recover for the loss and only when his wife was deliberately injured. Gradually the courts expanded the right to allow recovery for simple negligence. In Acuff a corresponding right in the wife was recognized when her husband was negligently injured. Id. at 279-80, 78 N.W.2d at 485-86.

One limitation that was commonly applied to common law consortium claims is at the center of the controversy here. At common law a consortium recovery could be had only in cases where the spouse, or later the parent, was injured. A loss of consortium claim would lie for the limited period of time between injury and death. See Wilson v. Iowa Power & Light Co., 280 N.W.2d 372, 373 (Iowa 1979); Lampe v. Lagomarcino-Grupe Co., 251 Iowa 204, 208, 100 N.W.2d 1, 3 (1959).

There was a certain anomaly in allowing such a claim for an injured spouse or parent but not for a more grievous loss when the spouse or parent was killed. A fear of double recovery by the wife was the primary justification for the rule. See Lampe v. Lagomarcino-Grupe Co., 251 Iowa at 208-09, 100 N.W.2d at 3-4.

This dearth of recovery rights, and their inconsistency, prompted a number of legislative responses. They include section 611.20, our survival statute, section 611.22, which provides for substituting a legal representative upon the death of a party to pending litigation, and two special damage provisions, section 613.15 and Iowa R.Civ.P. 8. Section 613.15 provides:

In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician's services, nursing and hospital expense, and in the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.

Rule 8 provides: "A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child."

I. Our interpretations of section 613.15 have been inconsistent. In Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 664-65 (Iowa 1969), we said that the term "services" in the section included parental "affection" and "guidance":

Parental affection for the children probably will not cease after minority and the father may still continue to contribute to his children's support. That is a question for the jury to decide according to the evidence of the assurance the parental affection may give aid and support to the child after maturity.

The jury in considering loss to the children by their parents' deaths is not limited to the time during which they are minors if it can conclude from the evidence such services would have continued after they attained majority. There is no such limitation in the statute, The Question of Damages Resulting From Recent Legislative Changes, [15 Drake L.Rev. 107, 114 (1966) ] nor is there any such limitation in the value of the mother's services or a father's protection to their children at the critical period of their lives when they are about to enter into more or less distinct and separate lives upon attaining their maturity. Damages are not restricted to loss of benefits to which plaintiffs have a legal right. [Authority.]

The author of the article in the Drake Law Review cited supra suggests "the time element involved in the ... [fourth item--services and support] would be from the date of the decedent's death until the termination of his normal expectancy or the expectancy of his wife, whichever might be the shorter, plus in the case of children until such time as they might no longer need the decedent's support and services."

Other jurisdictions which have considered the question of duration of a child's loss of services suffered as a result of his parents' deaths have held the jury is not limited in fixing the award to the period the child is a minor. [Authorities.]

....

The Schmitt children had a right to look forward to care, advice and counsel from Dorothy for the remaining 33.97 years of normal life expectancy and from Theodore for 28.67 years. Even adult and married children have the right to expect the benefit of good parental advice and guidance.

Our statute permits the jury to include in its award the value of support as a parent and contains no limitation as to time element during which a child has the right to expect financial aid. "In the absence of a statute limiting the recovery of a minor child for the death of his parent to pecuniary loss during minority, a child may recover for the loss of pecuniary benefits which he might reasonably have expected after majority, ... since damages are not restricted to such loss of benefits to which the infant had a legal right." [Authorities.]

In Hankins v. Derby, 211 N.W.2d 581, 585-86 (Iowa 1973), we declined to recognize a child's independent cause of action for loss of parental consortium. We reasoned that a child's loss of parental consortium was a part of the section 613.15 recovery by the parents:

Further, we find ourselves inhibited from declaring that minor plaintiff has a maintainable cause of action by the provisions of section 613.15....

....

Plaintiff reminds us that in Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 664-65 (Iowa 1969), this court said:

"Section 613.15 permits recovery for the value of services decedents might and would have rendered in training and educating their children....

"The Schmitt children had a right to look forward to care, advice and counsel from Dorothy (mother) for the remaining 33.97 years of normal life expectance and from Theodore (father) for 28.67 years. Even adult and married children have the right to expect the benefit of good parental advice and guidance."

.... [S]ection 613.15 ... clearly permits recovery for all of the elements of damages asserted by plaintiff in the matter before us. It limits procedurally only the manner in which and the proper party by whom, the cause of action may be maintained, irrespective of plaintiff's assertion that the final phrase of section 613.15, which is italicized above, is not applicable here since the injury for which the parent is allowed recovery is "not the same injury that the child has suffered."

We incline more to the belief that the factual situation before us here is exactly that envisioned by the legislature in the enactment and passage of section 613.15.

In Iowa-Des Moines National Bank v. Schwerman Trucking Co., 288 N.W.2d 198, 204 (Iowa 1980), we said:

There remains the question whether trial court should have given defendants' requested instruction directing the jury to make no award for sentiment, grief, or loss of companionship. In the context of parent-child relationships, we find no reason to assume the legislature intended loss of "services" as used in section 613.15, The Code, to have a different meaning from loss of "services" in former Iowa R.Civ.P. 8. We construed the latter provision to include loss of companionship and society. [Authorities.] At the same time, the term does not include "grief, mental anguish or suffering," id., and upon retrial the jury should be so instructed.

The opinion in Weitl v. Moes, 311 N.W.2d 259, 263-65 (Iowa 1981), adopting a different interpretation of "services" in the section, was only a plurality decision....