Fabricius v. Horgen
Decision Date | 12 January 1965 |
Docket Number | No. 51558,51558 |
Citation | 132 N.W.2d 410,257 Iowa 268 |
Parties | M. G. FABRICIUS, Administrator of the Estate of Warren Pederson, Deceased, Appellee, v. Lucille J. HORGEN as Administratrix of the Estate of Virgil D. Horgen, Appellant. M. G. FABRICIUS, Administrator of the Estate of Marcella Pederson, Deceased, Appellee, v. Lucille J. HORGEN as Administratrix of the Estate of Virgil D. Horgen, Appellant. M. G. FABRICIUS, Administrator of the Estate of Laurine I. Olson, Deceased, Appellee, v. Lucille J. HORGEN as Administratrix of the Estate of Virgil D. Horgen, Appellant. M. G. FABRICIUS, Administrator of the Estate of Lloyd L. Olson, Deceased, Appellee, v. Lucille J. HORGEN as Administratrix of the Estate of Virgil D. Horgen, Appellant. |
Court | Iowa Supreme Court |
Brown, Dresser, Kinsey & Jolas, Mason City, for appellant.
Sams & Dunkelberg, Osage, for appellee.
Four cases involving identical procedural and substantive questions under the laws of Minnesota and Iowa have been consolidated for the purpose of an authorized interlocutory appeal.
On October 26, 1963, Warren Pederson, Marcella Pederson, his wife, and Laurine I. Olson, the wife of Lloyd L. Olson, were passengers in an automobile owned and operated by Lloyd L. Olson. They were traveling in a northerly direction on U. S. Highway Number 218 in Mower County, Minnesota. They were residents of Iowa.
At about the same time and place Virgil D. Horgen, also a resident of Iowa, was driving his automobile in a southerly direction. The Olson and Horgen cars collided. The two respective drivers and the three passengers in the Olson car were killed.
M. G. Fabricius has been appointed by the District Court of Mitchell County, Iowa administrator of the estates of Warren Pederson, Marcella Pederson, Laurine I. Olson, and Lloyd L. Olson. Lucille J. Horgen has been appointed by the District Court of Michell County, Iowa administratrix of the estate of Virgil D. Horgen and as such is defendant herein.
M. G. Fabricius as administrator in Iowa brought four separate actions in Iowa based on alleged wrongful death of his respective decedents seeking recovery from the administratrix of the estate of Virgil D. Horgen.
We have, therefore, an Iowa administrator of estates of Iowa residents seeking recovery in Iowa from the Iowa administratrix of a deceased Iowa resident on causes of action arising in minnesota.
Plaintiff, in his petitions, alleged actionable negligence on the part of Virgil D. Horgen, proximate cause and plaintiff's decedents' freedom from contributory negligence. For the purpose of the problems now before us we assume as facts the maters so pleaded.
Mr. and Mrs. Pederson were survived by three minor children who are next of kin.
Mr. and Mrs. Olson were survived by four minor children who are next of kin.
In each action plaintiff alleges damage suffered by defendant's next of kin and seeks recovery for the damage suffered by the next of kin pursuant to section 573.02 of the Statutes of the State of Minnesota.
Plaintiff also seeks recovery of the funeral expense in each instance.
In the Lloyd L. Olson case plaintiff also seeks recovery for the value of the wrecked automobile.
Defendant in each case moved to dismiss for that there is no authority under the law of Iowa that would establish legal liability of defendant to the minor children or heirs of plaintiff's decedent. Defendant argues that the only cause of action against defendant would be under the applicable wrongful death statutes of this state and plaintiff's action is not grounded thereon.
The motions to dismiss were overruled. Defendant in each action obtained leave and has appealed.
I. Plaintiff in these actions seeks recovery pursuant to section 573.02 Statutes of Minnesota. This statute provides as follows:
This is a wrongful death statute for the benefit of those dependent on the decedent and follows the philosophy of Lord Campbell's Act.
The statutory law of Iowa is found in section 611.20, Code of Iowa, I.C.A. This statute provides:
This is a survival statute preserving a right of action but it does not create a new action. To the extent that it saves an action from abatement it is in derogation of the common law.
We recently reviewed the difference between statutes patterned after Lord Campbell's Act and our survival statute in Cardamon v. Iowa Lutheran Hospital, Iowa, 128 N.W.2d 226, wherein we said:
* * *
'Under our law the measure of damage is the loss to the estate. * * *
'Our survival statute, section 611.20, Code of Iowa, I.C.A., is our alternative to the creation of a new cause of action under Lord Campbell's Act and comparable wrongful death statutes patterned thereon.' (loc. cit. pp. 234 and 235)
In the case before us we have an Iowa administrator, an officer of the Iowa court, seeking recovery in behalf of persons having no cause of action in Iowa and asking for recovery with a measure of damage not in accord with our law.
Plaintiff is not a person authorized under the law of Minnesota to bring an action. Section 573.01, Statutes of Minnesota, provides:
Plaintiff is in a rather anomalous situation. With the death of plaintiff's decedents the causes of action arising therefrom died in Minnesota except as provided in section 573.02. A new cause of action by a trustee was authorized. Plaintiff is not such a trustee. There is no claim that he has ever been appointed or qualified as such. He is an Iowa administrator representing decedents' estates. There is no claim that he is a proper person to maintain such an action in Minnesota and in Iowa he is attempting to recover for persons having no cause of action here and on a measure of damage not in accord with our law.
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