Handeland v. Brown, No. 2--56273

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcCORMICK; MOORE; UHLENHOPP; MOORE, C.J. and REES
Citation216 N.W.2d 574
PartiesRonald M. HANDELAND, Appellant, v. Dennis BROWN and Jane Eileen Brown, Appellees.
Decision Date27 March 1974
Docket NumberNo. 2--56273

Page 574

216 N.W.2d 574
Ronald M. HANDELAND, Appellant,
v.
Dennis BROWN and Jane Eileen Brown, Appellees.
No. 2--56273.
Supreme Court of Iowa.
March 27, 1974.

Marlyn S. Jensen, Des Moines, for appellant.

Page 575

Jeff H. Jeffries of Hopkins, Bump & Huebner, Des Moines, for appellees.

Considered en banc.

McCORMICK, Justice.

In this case of first impression we are required to decide whether a parental claim for medical expense and loss of services, companionship and society under rule 8, Rules of Civil Procedure, is subject to a defense based on the injured child's contributory negligence. Trial court held it is. We disagree and reverse and remand.

Vincent Handeland is the minor son of plaintiff Ronald D. Handeland. On September 10, 1971, Vincent was operating a borrowed motorcycle in Des Moines. He was injured when he collided at an intersection with an automobile driven by defendant Jane Eileen Brown and owned by defendant Dennis Brown.

Litigation ensued. Vincent, through plaintiff as next friend, brought a negligence action against defendants seeking to recover for his injuries. Plaintiff joined the action individually to assert his rule 8 claim based on Vincent's injuries. Rule 8, R.C.P., provides, 'A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.' Defendants pleaded a defense based on Vincent's alleged contributory negligence in bar of plaintiff's claim as well as Vincent's claim.

The parties agree there was sufficient evidence at trial to generate jury questions on the negligence and proximate cause averments of plaintiffs and defendants. Plaintiff requested an instruction to the effect any negligence of Vincent could not be imputed to plaintiff as to plaintiff's claim. He took timely exception to trial court's refusal to give it. The instruction given, to which plaintiff also timely excepted, informed the jury that if it found Vincent was negligent and his negligence was a proximate cause of his injuries its verdict should be for defendants on the claims of both Vincent and plaintiff.

The jury returned its verdict for defendants on both claims. Plaintiff alone appealed. The sole issue, squarely presented, is whether trial court erred in instructing the jury a defense of contributory negligence good against Vincent would also be good against plaintiff.

The position taken by trial court is supported by cases decided in other jurisdictions but not by logic. Our choice is whether we will be persuaded to follow a rule because it is generally followed elsewhere or reject it because we believe it is unsound.

The general rule is stated in § 494, Restatement of Torts, Second:

'The plaintiff is barred from recovery for an invasion of his legally protected interest in the health or life of a third person which results from the harm or death of such third person, if the negligence of such third person would have barred his own recovery.'

In the Appendix to that section the authors say the rule is supported by the great majority of cases which have considered it. Cases from several jurisdictions are cited for the principle. The authors recognize the rule has been much criticized on the ground the action is independent and not derivative. A number of law review citations are listed. A Canadian case, Wasney v. Jurazsky, 41 Man. 46, 1 D.L.R. 616 (Can.1933), is cited in opposition to the rule. See Restatement of Torts, Second, § 494 (App.1966). Other authorities are collected in an annotation at 21 A.L.R.3d 469 et seq.

Analysis of the cases shows four independent bases relied on by the courts applying the restatement rule: (1) the plaintiff's action is 'derivative'; (2) the negligence of the injured party is 'imputed' to the plaintiff; (3) the plaintiff receives his cause of action by 'assignment' from the injured person; and (4) the rule should be

Page 576

followed because it is well-settled. Although defendants cite cases from other jurisdictions in support of each basis, they choose to defend only the fourth basis. Since its strength depends upon the persuasiveness of the cases by which the general rule arose, we will discuss each basis.

I. The derivative action theory. Illustrative of cases in the first category is Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 (1966). There, without saying why, the court held, '(A) cause of action arising in favor of the parent resulting from a tort committed against the child is derivative in nature and such action is subject to the same defenses that are available in the action arising in favor of the child.' 405 S.W.2d at 471.

We rejected the derivative action rationale as applied to a rule 8 claim in Irlbeck v. Pomeroy, 210 N.W.2d 831, 833 (Iowa 1973) ('Under rule 8 the parent has a cause of action for a legal wrong to himself independent of that of the child.'); see also Wardlow v. City of Keokuk, 190 N.W.2d 439, 443 (Iowa 1971). In Irlbeck we distinguished rule 8 claims from truly derivative actions, such as wrongful death actions, which are brought by one person to redress a wrong done to another rather than himself. A rule 8 claim is brought by a parent to redress a wrong done to himself rather than another.

We cannot use the derivative action shibboleth as a basis for adopting the restatement rule.

II. The imputed negligence theory. The imputed negligence rationale had its genesis in a federal case purporting to apply Iowa law, Chicago, B. & Q.R. Co. v. Honey, 63 F. 39 (8 Cir. 1894). It was an action by a husband for medical expense and lost consortium by reason of injuries to his wife. The court held the plaintiff was barred from recovery by his wife's contributory fault because he vouched for her ability to avoid injury by permitting her to go out unattended, and it is thus reasonable to hold him responsible for the manner in which her faculties of self-preservation were exercised. This rule was equated to a rule then extant in Iowa which would impute the wife's contributory negligence to the husband in an action against a third party for damages to a horse and carriage owned by the husband but operated with his consent by the wife.

The latter rule was repudiated when the family purpose doctrine was rejected in McMartin v. Saemisch, 254 Iowa 45, 116 N.W.2d 491 (1962), where the Honey case was referred to as 'an interesting discussion of the old law' and distinguished. The court held the family use doctrine was based on obsolete concepts. Since they were no longer viable, the doctrine itself was repudiated. Cf. Stuart v. Pilgrim, 247 Iowa 709, 74 N.W.2d 212 (1956).

Another strand of reasoning in the Honey case treated the family relationship itself as a reason for imputing contributory negligence. Permitting recovery where someone in the household was contributorily negligent was considered unjust enrichment of the family treasury. That thinking was rejected by this court long ago. See Wymore v. Mahaska County, 78 Iowa 396, 43 N.W. 264 (1889) (parent's negligence not imputed to his child); Watson v. Wabash, 66 Iowa 164, 23 N.W. 380 (1885) (child's negligence not imputed to his parent). We more recently reaffirmed our view. See Zach v. Morningstar, 258 Iowa 1365, 142 N.W.2d 440 (1966).

The reasoning of the Honey case cannot withstand critical analysis. We have implicitly disapproved it; now we explicitly do so. It rests on an archaic and discredited view of familial responsibility. We refuse to accept imputed negligence as a basis for adopting the restatement rule.

III. The assignment theory. The third category of cases is rooted in an assignment theory posited in Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N.W. 198 (1925). This theory essentially rests on the same foundation as the derivative action theory with which it is often equated.

Page 577

Basically, the assignment rationale is an effort to explain why the parental action can be called derivative. The Wisconsin court held the parental cause of action for lost services is assigned to the parent by operation of law in return for the parental support obligation. The court said, 'The parent takes by operation of law a part of the child's cause of action, and he must take it as the child leaves it.' Id., 188 Wis. at 381, 206 N.W. at 200.

This theory has been subjected to devastating and persuasive criticism. See, e.g., James, Imputed Contributory Negligence, 14 La.L.Rev. 340, 354--360 (1954); Gregory, The Contributory Negligence of Plaintiff's Wife or Child in an Action for Loss of Services, 2 U.Chi.L.Rev. 173, 180--193 (1935); Prosser, Law of Torts, § 125 (Fourth Ed.1971); 1 Harper and James, The Law of Torts, § 8.8 (1956). The assignment basis is a convenient legal fiction without historical validity.

Wisconsin recently limited and perhaps undermined...

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31 practice notes
  • State v. Dabkowski
    • United States
    • Supreme Court of Connecticut
    • March 18, 1986
    ...no longer supportable in fact." Pendexter v. Pendexter, 363 A.2d 743, 749 (Me.1976) (Dufresne, C.J., concurring); see Handeland v. Brown, 216 N.W.2d 574 (Iowa 1974). The target of the defendant's first claim of error is an evidentiary rule of long standing in this jurisdiction. "In sex-rela......
  • Turner v. Turner, No. 64320
    • United States
    • United States State Supreme Court of Iowa
    • April 15, 1981
    ...box score of states in favor of rescinding the rule. We have not always been so responsive to such a head count. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974). ("We have no obligation to adopt a rule just because it has been generally adopted elsewhere".) We should not be influenc......
  • Plowman v. Fort Madison Cmty. Hosp., No. 15-0974
    • United States
    • United States State Supreme Court of Iowa
    • June 2, 2017
    ...negligence of another.' " Dunn v. Rose Way, Inc. , 333 N.W.2d 830, 832 (Iowa 1983) (emphasis added) (quoting Handeland v. Brown , 216 N.W.2d 574, 578 (Iowa 1974) ).Here, as the defendants note, "there is no allegation that Defendants negligently caused [Z.P.'s] injuries." There is no injury......
  • Villarreal v. United Fire & Cas. Co., No. 14–0298.
    • United States
    • United States State Supreme Court of Iowa
    • January 8, 2016
    ...provide a basis for the obvious innovations of our prior caselaw presented in the court's opinion in this case. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974) ("[W]e have no obligation to adopt a rule just because it has generally been adopted elsewhere. Although cases from other s......
  • Request a trial to view additional results
31 cases
  • State v. Dabkowski
    • United States
    • Supreme Court of Connecticut
    • March 18, 1986
    ...supportable in fact." Pendexter v. Pendexter, 363 A.2d 743, 749 (Me.1976) (Dufresne, C.J., concurring); see Handeland v. Brown, 216 N.W.2d 574 (Iowa 1974). The target of the defendant's first claim of error is an evidentiary rule of long standing in this jurisdiction. "In sex-rela......
  • Turner v. Turner, No. 64320
    • United States
    • United States State Supreme Court of Iowa
    • April 15, 1981
    ...box score of states in favor of rescinding the rule. We have not always been so responsive to such a head count. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974). ("We have no obligation to adopt a rule just because it has been generally adopted elsewhere".) We should not b......
  • Plowman v. Fort Madison Cmty. Hosp., No. 15-0974
    • United States
    • United States State Supreme Court of Iowa
    • June 2, 2017
    ...negligence of another.' " Dunn v. Rose Way, Inc. , 333 N.W.2d 830, 832 (Iowa 1983) (emphasis added) (quoting Handeland v. Brown , 216 N.W.2d 574, 578 (Iowa 1974) ).Here, as the defendants note, "there is no allegation that Defendants negligently caused [Z.P.'s] injuries." The......
  • Villarreal v. United Fire & Cas. Co., No. 14–0298.
    • United States
    • United States State Supreme Court of Iowa
    • January 8, 2016
    ...provide a basis for the obvious innovations of our prior caselaw presented in the court's opinion in this case. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974) ("[W]e have no obligation to adopt a rule just because it has generally been adopted elsewhere. Although cases from ot......
  • Request a trial to view additional results

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