Fabricius v. Horgen

• Citation: 132 N.W.2d 410,257 Iowa 268
• Decision Date: 12 January 1965
• Docket Number: No. 51558,51558
• 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: United States State Supreme Court of Iowa

Page 410

132 N.W.2d 410

257 Iowa 268

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.

No. 51558.

Supreme Court of Iowa.

Jan. 12, 1965.

Brown, Dresser, Kinsey & Jolas, Mason City, for appellant.

Sams & Dunkelberg, Osage, for appellee.

SNELL, Justice.

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:

'Action for death by wrongful act. Subdivision 1. When death is caused by the wrongful act or omission of any person or corporation, the trustee appointed as provided in subdivision 2 may maintain an action therefor if the decedent might have maintained an action, had he lived, for an injury caused by such wrongful act or omission. The action may be commenced within three years after the act or omission. The recovery in such action is such an amount as the jury deems fair and just in reference to the pecuniary loss resulting from such death, shall not exceed $25,000, and shall be for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court then determines the proportionate pecuniary loss of the persons entitled to the recovery and orders distribution accordingly. Funeral expenses and any demand for the support of the decedent other than old age assistance, allowed by the court having jurisdiction of the action, are first deducted and paid.

'If an action for such injury was commenced by the decedent and not finally determined during his life, it may be continued by the trustee for recovery of such damages for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court on motion shall make an order allowing such continuance and directing pleadings to be made and issues framed as in actions begun under this section.

'Subd. 2. Upon written petition by the surviving spouse or one of the next of kin, the court having jurisdiction of an action falling within the provisions of subdivision 1, shall appoint a suitable and competent person as trustee to commence or continue such action and obtain recovery of damages therein. The trustee, before commencing his duties shall file his consent and oath. Before the trustee shall receive any money, he shall file a bond as security therefor in such form and with such sureties as the court may require.

'Subd. 3. This section shall not apply to any death or cause of action arising prior to its enactment, nor to any action or proceeding now pending in any court of the State of Minnesota.'

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:

'Actions survive. All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.'

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:

'At common law there was no right of action for a wrongful death. There was a right of action for damages for personal injury, but the death of the plaintiff pending the suit abated the same. * * *

'Dissatisfaction with the common law rule was extensive but it was a situation best cured by legislation. The first change was by legislative action in England through enactment of what is known as Lord Campbell's Act in 1846. This statute created a new right of action in favor of certain classes of persons and against the wrongdoer for damages resulting to them from wrongful death.

'Legislation having a similar general purpose soon followed in our country. Iowa in 1851 was among the first to act. There are, however, fundamental differences between the statutes following Lord Campbell's Act and the Iowa statute.

'The distinction is clear. The acts while having the same remedial purpose differ in their provisions, their theory and application.

'The beneficiaries are different. Under the English act the action is brought by and for the parent, child, or spouse. Under our act it is by and for the decedent's estate.

'The measure of damage is different. Under the English act the measure of damage was the injury suffered by the parent, child, wife, or husband, to be divided among them as the jury might direct.

'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:

'Survival of causes. A cause of action arising out of an injury to the person dies with the person of the party in whose favor it exists, except as provided in section 573.02. It also dies with the person against whom it exists, except a cause of action arising out of bodily injuries or death caused by the negligence of a decedent survives against his personal representatives. All other causes of action by one against another, whether arising on contract or not, survive to the personal representatives of the former and against those of the latter.'

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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