Gardner v. Beck
| Decision Date | 26 September 1922 |
| Docket Number | 34553 |
| Citation | 189 N.W. 962,195 Iowa 62 |
| Parties | C. F. GARDNER, Administrator, Appellee, v. ROBERT F. BECK, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 20, 1923.
Appeal from Hamilton District Court.--H. E. FRY, Judge.
ACTION by the administrator for damages for the wrongful death of the decedent, a married woman. The defenses were a general denial and a plea of the statute of limitations. There was a judgment upon a verdict for the plaintiff. The defendant appeals.
Reversed.
Burnstedt & Hemingway, for appellant.
Healy Thomas & Healy and F. J. Lund, for appellee.
I.
The defendant was a dentist, engaged in his profession at Webster City. The decedent, Katherine Gardner, became his patron. He performed certain dental work for her on September 5 and 7, 1917, consisting of certain bridge work. It is charged that he performed the work negligently, and that by reason of his negligence, infection occurred, which resulted in the death of Mrs. Gardner on November 19, 1917. It is claimed that the infection developed and manifested itself in the joints of the limbs, as arthritis. The plaintiff's cause of action is predicated upon Section 3477-a, Code Supplemental Supplement, 1915 (Compiled Code Section 7103). The one question presented for our consideration on this appeal is that of the bar of the statute of limitations. That question involves the further questions:
(1) On what date did the statute begin to run?
(2) On what date was the running of the statute tolled?
No other tolling is contended for than the beginning of the suit. The defendant contends that it began to run not later than September 7, 1917, the last date of the alleged negligence and injury; that suit was not begun in any other sense than that a petition was filed on September 19, 1919, to which the defendant entered an appearance on September 25, 1919.
The plaintiff contends: (1) That the statute did not begin to run until the appointment of the administrator, which was on September 17, 1919; (2) that, in any event, it did not begin to run until the death of the decedent, November 19, 1917; (3) that the statute was fully tolled by the serving of a notice of suit on August 23, 1919, even though such service antedated the appointment of the plaintiff as administrator.
It is the general rule obtaining in this state that a cause of action for damages for injury done accrues immediately at the time of the wrongful injury. Gustin v. Jefferson County, 15 Iowa 158; Steel & Johnson v. Bryant, 49 Iowa 116; Garrett v. Bicklin, Winzer & Co., 78 Iowa 115, 42 N.W. 621; Sherman v. Western Stage Co., 24 Iowa 515; Ogg v. Robb, 181 Iowa 145, 162 N.W. 217. This is only saying that, when one suffers a personal injury through the wrongful act of another, he has an immediate right of action to recover therefor; and this is so even though the amount of his recovery as damages may be and usually is affected by future developments and future probabilities. Such future developments may add new elements of damage, and thereby enlarge the amount to which he may be rightfully entitled. These additional elements of damage, however, attach themselves to the original cause of action, and do not become of themselves independent causes of action. Unless, therefore, some provision is to be found in the terms of the statute above cited which creates a different rule, we must deem our past precedents controlling.
II. The contention for the plaintiff is that, by the terms of Section 3477-a, a new cause of action is created for the wrongful death of a married woman, and that it accrues, not to her in her lifetime, but to her administrator alone, and that, therefore, the statute of limitations could not begin to run until after her death. Such section is as follows:
"When any woman receives an injury caused by the negligence or wrongful act of any person, firm or corporation, including a municipal corporation, she may recover for loss of time, medical attendance and other expenses incurred as a result thereof in addition to any elements of damages recoverable by common law; and if such injury result in causing death, her administrator may sue and recover for her estate, the value of her services as a wife or mother or both in such sum as the jury may deem proportionate to the injury resulting in her death, in addition to such damages as are recoverable by common law; also loss of services and expenses incurred before death, if not previously recovered, and in such case of injury arising from willful, gross, or wanton negligence, punitive damages may be allowed by the jury in addition to other damages herein provided, but in no event shall the amount exceed the sum of fifteen thousand dollars."
The petition claims as damages the loss of services and earnings of the decedent during her sickness, and the medical and nursing expenses attending her sickness, and the loss of her services as wife and mother. The questions naturally arising upon the contentions of the parties may be stated briefly as follows:
(1) Was it the intent of the statute to create a separate and independent cause of action for the wrongful death of a woman, which cause of action should first inure to her administrator, and should be distinct and independent from any cause of action arising to the decedent in her lifetime for the same injury?
(2) Or was it the intent to add new elements of damage to a right of action already existing, either by statute or at common law?
The plaintiff contends for the affirmative on the first question; whereas the defendant contends for the affirmative on the second question.
While this statute is sometimes referred to as the "married woman" statute, it does not purport, by its own terms, to be so qualified. It is broad in its terms, and applies to all women. One of its practical effects, however, is that it recognizes the substantial value of the services of a "wife or mother," and that such value may be considered as an element of damages, for her wrongful death, to be recovered by her estate through the administrator.
Before proceeding to a construction of the statute, a little legislative history must be noted. 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. This was the state of the law in England prior to 1846, at which time an act of Parliament was adopted, which is known in the law books as Lord Campbell's Act (9 & 10 Vict. c. 93), and which created a new cause of action for wrongful death. This cause of action accrued, in the first instance, to the administrator of the decedent, and for the benefit of designated beneficiaries. The material part of such act was as follows:
The only element of damage to be considered in such action was the wrongful death. No account was taken therein of injuries sustained by the decedent, or of any loss or damage suffered by him during his lifetime. The act gave no right to include, as elements of damages in the administrator's suit, the damages suffered by the decedent during his lifetime. These elements and the cause of action therefor were all allowed to abate, as before, by reason of the death of the injured party before judgment thereon. No provision was made in the act for a survival of the decedent's cause of action or of the elements of damage therein accruing during his lifetime.
The substance of this statute was adopted in many of the states of the Union, and is now in force therein. The Federal Employers' Liability Act enacted by Congress was also patterned after this act. The contention for the plaintiff is that Section 3477-a was intended as the equivalent of this act. No legislation in this state has heretofore adopted the act in question or its equivalent as a pattern. The end aimed at by Lord Campbell's Act was attained in this state by other and more practical forms of legislation. This was by providing for a survival of all causes of action, as provided by Sections 3443, 3444, and 3445 of the Code of 1897. These sections are as follows:
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