Irlbeck v. Pomeroy

• Decision Date: 19 September 1973
• Docket Number: No. 55822,55822
• Citation: 210 N.W.2d 831
• Court: Iowa Supreme Court
• Parties: Leonette IRLBECK, Appellee, v. Lee Ann POMEROY and Harold L. Pomeroy, Appellants.

Page 831

210 N.W.2d 831

Leonette IRLBECK, Appellee, v. Lee Ann POMEROY and Harold L. Pomeroy, Appellants.

No. 55822.

Supreme Court of Iowa.

Sept. 19, 1973.

Edward S. White, Carroll, for appellants.

Claus H. Bunz, Manning, for appellee.

Heard before MOORE, C.J., and MASON, REYNOLDSON, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

The issue in this case is whether the guest statute is a defense to a negligence claim by the parent of a minor guest under rule 8, Rules of Civil Procedure, against the owner and operator of the motor vehicle in which the child was riding. Trial court sustained plaintiff's motion to strike the defense from defendants' answer. We granted interlocutory appeal. We affirm the trial court.

Plaintiff Leonette Irlbeck alleged in her petition that she is the mother of Mary Schoeppner who was fatally injured December 22, 1970, at the age of 18. The child was a passenger in an automobile owned by defendant Harold L. Pomeroy and driven with his consent by defendant Lee Ann Pomeroy when the Pomeroy vehicle collided with another. Plaintiff further alleged her daughter's death was proximately caused by negligence of Lee Ann Pomeroy in the operation of the car in several particulars. She asked damages for lost services, companionship and society from the child's date of death until she would have reached her majority. Defendants specifically denied the negligence, proximate cause and damage allegations of plaintiff's petition and, in addition, alleged 'at the time of said collision Mary Schoeppner was riding in said vehicle as a guest passenger and that because of that fact the petition does not as a matter of law state a cause of action against the defendants.' Trial court struck this guest statute defense. In their single assignment of error defendants assert the guest statute is a defense to plaintiff's claim.

I. Defendants do not contend the guest statute directly reaches plaintiff. She was not riding in the Pomeroy car and the statute applies directly only to 'any passenger or person riding in said motor vehicle':

'321.494 Guest statute. The owner or operator of a motor vehicle shall not be liable for any damages to Any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of an alcoholic beverage, a narcotic, hypnotic or other drug, or any combination of such substances, or because of the reckless operation by him of such motor vehicle.' (italics added)

We agree with defendants' concession that the statute does not directly bar plaintiff's claim.

II. Defendants do contend the guest statute indirectly reaches plaintiff. They argue that because the statute would bar negligence recovery to an injured child guest it necessarily bars the parent's negligence claim for loss occasioned by the same injury. They say the parent's claim is a 'derivative action' and could only be maintained if a suit for wrongful death of the child could have been successfully prosecuted in the face of a guest statute defense. We have never previously met this precise question.

A true derivative action is one which a person may institute to redress a wrong done to another. Our survival statute Code § 611.20 is an example. The cause of action accruing to a fatally injured person survives his death and is maintainable by his estate representative, subject to any defense which could have been raised against the decedent. See, E.g., Wymore v. Mahaska County, 78 Iowa 396, 399, 43 N.W. 264, 266 (1889) ('If the facts are such that the child could have recovered had his injuries not been fatal, his administrator may recover the full amount of damages which the estate of the child sustained').

The present case is not that kind of derivative action. It is based on rule 8, R.C.P., (as it read prior to amendment, not here relevant, on July 1, 1973):

'A father, of if he be dead, imprisoned or has deserted the family, then the mother, may sue for the expense and actual loss of services resulting from injury to or death of a minor child.'

Rule 8 was analyzed in Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971). We noted the common law roots of the rule insofar as it governs actions by a parent for non-fatal injuries to his child and observed that it extends recovery to situations where death results. Under rule 8 the parent has a cause of action for a legal wrong to himself independent of that of the child. It is derivative only in the sense it is based on injury to or death of the child:

'* * * (T)he wrongful or negligent death of a minor gives rise in Iowa to two causes of action, one on behalf of the minor's administrator for those injuries which are personal to the decedent, section 611.20, the other on behalf of the father for loss of services during minority and expenses incurred on account of those injuries, rule 8. Actions brought under rule 8 are not for the injury to the child but for the injury to the father as a consequence of the injury to the child. (citation) Wardlow v. City of Keokuk, supra, at 443 (italics added).

Nothing in rule 8 suggests actions by the parent are subject to a guest statute defense that might be urged against the child. The rule is remedial. Id. Its provisions are to be liberally construed in furtherance of its objects. Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556, 558, 149 N.W.2d 789, 790 (1967).

Defendant relies upon Shiels v. Audette, 119 Conn. 75, 174 A. 323 (1934) which involves the availability of a guest statute defense in facts analogous to those here. The court denied parental recovery on the rationale that 'an essential element of the cause of action vested by law in the parent is that the compensation recoverable by him for expenses flows from a personal injury for which, under the law, the child would be entitled to recover...