DeMoss v. Walker

• Citation: 242 Iowa 911,48 N.W.2d 811
• Decision Date: 10 July 1951
• Docket Number: No. 47856,47856
• Parties: DE MOSS v. WALKER et al.
• Court: Iowa Supreme Court

Page 811

48 N.W.2d 811

242 Iowa 911

DE MOSS v. WALKER et al.

No. 47856.

Supreme Court of Iowa.

July 10, 1951.

Doran, Doran, Doran & Erbe, of Boone, Eugene R. Melson, of Jefferson, for appellant.

O. W. Harris, of Jefferson, for appellees Earl T. Walker and Eva walker.

Charles E. Hird, of Jefferson, for appellee Philip Sullivan.

MULRONEY, Justice.

The questions involved in this appeal are limited to the correctness of the instruction on damages and the adequacy of the verdict. Plaintiff, as administrator of his mother's estate recovered a judgment of $100 against the Walkers as damages for the death of intestate who died as a result of the alleged negligent operation of the Walker car. Plaintiff appeals, and the errors assigned are: (1), that the court erred in instructing the jury on the matters to be considered in arriving at the amount of their verdict and (2), the amount of the verdict was grossly inadequate. These were two grounds in plaintiff's motion for new trial which the trial court overruled.

Decedent was 77 years old at the time of her death on June 11, 1949. She and her husband had drawn old age pension since 1945. Her husband died in 1947 and thereafter decedent drew old age pension until her death. The old age pension was all that either decedent or her husband had to live on. She lived alone in an apartment in Jefferson. She had eleven children, of whom nine lived to maturity and six of her children were living at the time of her death. The record shows a total payment to deceased and her husband in the form of old age assistance in the sum of $3582. Deceased was in good health and an active woman for her age at the time of her death. Section 613.11, Code 1950, I.C.A., in defining the damages recoverable because of the wrongful or negligent injury or death of a woman, provides in part as follows: 'In addition she, or her administrator for her estate, may recover * * * the value of her services as wife, or mother, or both, as the case may be, in such sum as the jury deems proper * * *.'

The trial court gave the usual instruction to the effect that the measure of recovery would be the reasonable present value of the life of decedent to her estate; the present worth of the amount decedent would reasonably be expected to save and accumulate by her efforts if she had lived out her natural life. The plaintiff's requested instruction which was refused would add to the measure as given: 'the present worth or value of that amount, if any, which under all the circumstances disclosed in evidence you believe the said Ida May DeMoss's services as a mother would amount to.'

I. The two assigned errors are argued together in a single division in plaintiff's brief. We do not understand that plaintiff argues in support of this assigned error that the instruction as given states an erroneous measure to be applied in suits by personal representatives for the wrongful death of their decedents. The first argument is that under the statute and under the evidence in this case the jury should have been told they could consider not only the pecuniary loss to decedent's estate by her untimely death but also her services as a mother, in arriving at their verdict.

The record shows decedent was the mother of adult children, all of whom had established homes of their own, at the time of her death. She had a life expectancy of between five and six years. A married daughter testified that when her mother came to her home she would work in the garden; that decedent had worked in her garden two weeks before her death.

The statute giving the administrator of a woman's estate the right to recover for the value of her services as a mother, in a suit for her wrongful or negligent death, must mean the value of those services which the evidence shows were rendered by the woman in her capacity as a mother, such as the usual services a mother renders in her home where her children live. Bridenstine v. Iowa City Electric R. Co., 181 Iowa 1124, 165 N.W. 435. Perhaps in a proper case it could include services rendered as a mother of adult children and it might include services rendered outside her home and in the homes of her children. We need not decide. It is enough to say that under this record there was no evidence of services rendered by decedent as a mother.

Much authority can be found for this interpretation in those jurisdictions where, by statute, the children are given a right of action for the wrongful or negligent death of a parent. Here the universal rule is that the law implies damages to minor children but adult children must prove their pecuniary loss. 25 C.J.S., Death, § 118. In such cases adult children are not entitled to recover on the basis of their relationship alone. South Texas Coaches v. Eastland, Tex.Civ.App., 101 S.W.2d 878 and cases there cited; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549. An adult child's occasional receipt of services from his mother furnishes insufficient proof that he was damaged by her death. Gaydos v. Domabyl, supra.

In the Bridenstine case [181 Iowa 1124, 165 N.W. 439] we discounted evidence of neighbors as to the monetary value of deceased's services as a 'wife and mother'. There we said: 'The services of a competent wife or mother cannot be weighed in the scales of the money changer. And indeed it would seem almost frivolous to call witnesses to estimate their monetary value.'

The opinion in the Bridenstine case does not show the ages of the children, or whether they all resided in the mother's home. But there the deceased was a wife and the opinion states she was 'about 64 years of age, the mother of several children, a good and efficient housekeeper * *...