Fitzgerald v. Hale, 48964
| Decision Date | 18 September 1956 |
| Docket Number | No. 48964,48964 |
| Citation | 247 Iowa 1194,78 N.W.2d 509 |
| Parties | Mary C. FITZGERALD, Executrix of the Estate of Bridget McCarthy, Deceased, Appellant, v. Dr. A. E. HALE, Appellee. |
| Court | Iowa Supreme Court |
Robert H. Shepard and Mason & Stone, Mason City, for appellant.
Westfall, Laird & Burington and James R. Heiny, Mason City, for appellee.
This action was instituted by the executrix of the will of Bridget McCarthy, deceased. The petition alleges decedent suffered personal injuries, caused by defendant's negligence, by falling against a step in defendant's laboratory September 29, 1954, from which injuries decedent was recovered by January, 1955, but, in April, 1955, died from a cause not related thereto. The damages prayed were, (a), $1,556.29 for expense for medical services, hospitalization, etc., and (b), $7,500 for pain and suffering attendant to the injuries, from September 29 through January. Upon motion of defendant, the trial court struck the part of the petition asking damages for decedent's pain and suffering. From this order we granted an appeal and plaintiff has appealed.
Although this is not an action for damages for wrongful death, it is so related to such actions that its determination requires the consideration of the statutes and doctrines governing them. At common law, there was a right of action for damages for personal injury but the death of plaintiff, pending the suit, abated the same. There was no right of action for the recovery of damages for a wrongful death. In 1846 the rule as to wrongful death was changed in England by Lord Campbell's Act, which created a new cause of action for wrongful death. That act provides such action shall be brought by the executor or administrator of deceased for the benefit of the wife, husband, parent and child, and the jury may give such damages as they may think proportioned to the injury of such respective persons resulting from such death. With reference to such acts, McCoullough v. Chicago, R. I. & P. R. Co., 160 Iowa 524, 528, 142 N.W. 67, 70, 47 L.R.A.,N.S., 23, states: 'The cause of action is based not upon the injury to the deceased, but upon the fact of his death by wrongful act of the defendant.' Acts similar to Lord Campbell's Act were adopted in most of the United States. Such acts are called death acts or wrongful death acts.
However, Iowa and several other states changed the common-law rule by statutes which did not create a new cause of action but provided for the survival of existing causes of action. These are known as survival acts. In Iowa legislation on the subject appeared in the Code of 1851, and, despite various amendments, the statutes have always retained the survival principle.
Although wrongful death acts are applicable only where the death results from the effect of the wrongful act, survival acts generally apply also to cases where the injured person dies from an unrelated cause, as in the case at bar. Many states with wrongful death statutes have adopted survival acts also. Other statutes covering special situations or occupations have been enacted in various states. The pertinent statutes in Iowa, now appearing in the Code of 1954, I.C.A., are as follows:
'611.20 Actions survive. All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.
'611.21 Civil remedy not merged in crime. [Not here important.]
'611.22 Actions by or against legal representatives--substitution. Any action contemplated in sections 611.20 and 611.21 may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the time it would have accrued to the deceased if he had survived. * * *
Wood v. Wood, 136 Iowa 128, 132, 113 N.W. 492, 12 L.R.A.,N.S., 891, 125 Am.St Rep. 223, states these statutes should be liberally construed, so as to permit the substitution of the representative of the deceased litigant in his place and that the manifest object of the section (now § 611.22) is to render available to such representative, all the remedies to which the litigant, had he lived, might have resorted. Dille v. Plainview Coal Co., 217 Iowa 827, 828 to 841, 250 N.W. 607, holds the term, 'causes of action', in the clause in section 611.20, 'All causes of action shall survive' is used in a broad sense.
Our decisions agree the Iowa legislation is a survival act, but in interpreting it they divide actions for wrongful death into two classes or groups. In one group are actions for damages for wrongful injury, commenced by the injured person, and, after his death, continued by his legal representative. Our decisions in these cases (in which the death resulted from the injuries), hold the survival act preserves to the legal representative, the original cause of action, and enlarges the elements of damages to include the wrongful death. Muldowney v. Illinois Central R. Co., 36 Iowa 462, 468; Dice v. Johnson, 198 Iowa 1093, 1102, 199 N.W. 346, 350. Statements in various other Iowa decisions support these holdings. In the second group are actions not commenced before the death of the injured person but instituted by his administrator or executor after such death. Among such cases are: Donaldson v. Mississippi & Missouri R. Co., 18 Iowa 280, 290, 87 Am.Dec. 391; Dwyer v. Chicago, St. Paul & O. Ry. Co., 84 Iowa 479, 483, 484, 51 N.W. 244, 35 Am.St.Rep. 322; Kinser v. Soap Creek Coal Co., 85 Iowa 26, 31, 51 N.W. 1151; Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. 876; Flynn v. Chicago Great Western R. Co., 159 Iowa 571, 574, 141 N.W. 401, 45 L.R.A.,N.S., 1098; Boyle v. Bornholtz, 224 Iowa 90, 93, 275 N.W. 479. See also Van Wie v. United States, D.C., 77 F.Supp. 22, 47, 48 and citations.
In actions in the second group this court has held the element of pain and suffering does not survive. In effect, the statutory language, all causes of action shall survive is interpreted to mean merely, all actions shall survive. The effect of the rule thus formulated is that whether recovery for pain and suffering is barred depends wholly upon whether the action was started after or before death. It is apparent the results of this method of determining elements of damages will not be logical nor uniform and in some cases will be harsh. In the case before us the major element of damages was excluded by the order here on appeal.
Moreover, these holdings overlook a basic difference between death acts and survival acts. Death acts create, in favor of certain beneficiaries, an entirely new cause of action, distinct from and independent of any right of action decedent might have had during his lifetime or would have had if he had survived the injury. Under such acts the inquiry is as to the extent of damages sustained by the beneficiaries in consequence of the wrongful death, and the loss to deceased, or his pain and suffering, may not be considered. Under a survival statute the recovery is for such damages as deceased himself might have recovered had he survived the injury and brought the action, enlarged to include the wrongful death.
Seymour v. Richardson, 194 Va. 709, 75 S.E.2d 77, 81, which involves a converse situation, refers to 'the illogic of allowing damages for those elements [pain and suffering] in an action brought by the injured person and revived in the name of his personal representative, but not in an action for the same cause if brought originally by his personal representative.' In Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661, it was contended certain elements of damages under a survival act (there was also a death act) were barred because action was brought after the death. The decision states the survival statute merely continues in the legal representative the right of action which accrued to decedent;
These propositions received detailed consideration in an article by Henry Craig Jones, Dean of the College of Law of State University of Iowa, entitled, 'Civil Liability for Wrongful Death in Iowa', in 10 Iowa Law Bulletin 169 and 11 Iowa Law Review 28. In 5 Drake Law Review 98, is an article by Lawrence E. Gardner, entitled, 'Measuring Damages to the Estate in Wrongful Death Cases.' An article in 39 Iowa Law Review 494, is entitled, 'The Measure of Damages for the Wrongful Death of the Head of the Family in Iowa.'
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