Lampe v. Lagomarcino-Grupe Co.

• Decision Date: 15 December 1959
• Docket Number: LAGOMARCINO-GRUPE,No. 49833,49833
• Citation: 100 N.W.2d 1,251 Iowa 204
• Parties: Hilda M. LAMPE, Appellant, v.COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 1

100 N.W.2d 1

251 Iowa 204

Hilda M. LAMPE, Appellant, v. LAGOMARCINO-GRUPE COMPANY, Appellee.

No. 49833.

Supreme Court of Iowa.

Dec. 15, 1959.

J. Francis Phelan, Robert N. Johnson, and Johnson & Phelan, Fort Madison, for appellant.

Carl C. Riepe, John G. Link, Hirsch, Riepe & Wright, Burlington, for appellee.

GARRETT, Justice.

Clarence Lampe, while riding as a passenger and not as a guest in a truck owned and operated by Herman Kruse, sustained injuries from which he died a few minutes after an intersection collision of said truck with a beer delivery truck owned by the defendant Lagomarcino-Grupe Company and driven by T. A. Sullivan.

Action was brought by Hilda M. Lampe as executrix of the estate of Clarence Lampe and by Hilda M. Lampe, personally against Lagomarcino-Grupe Company and T. A. Sullivan. Herman Kruse was later made a defendant.

In Court I the executrix claimed damages to the estate by reason of Lampe's wrongful death. In Count II Hilda M. Lampe personally claimed damages as the widow of Lampe for loss of consortium from the time of his injury to the expiration of his life expectancy. On Count I the jury returned a verdict for plaintiff against Lagomarcino-Grupe Company for $39,000 and this judgment was paid. On Count II the jury found for Hilda M. Lampe and against Lagomarcino-Grupe Company for $17,500. The court sustained the defendants's motion for judgment notwithstanding the verdict and Hilda M. Lampe has appealed. Plaintiff alleged, in this court, that by reason of the carelessness and negligence of the defendants 'she has been and will be for the remainder of her life deprived of the services; the society, companionship and conjugal affection; the counsel and consolation; the aid, assistance and consortium of her said husband in all the relations of domestic life.'

It was shown Clarence Lampe was thirty-seven and his wife thirty-three years of age, and that his life expectancy was 31.75 years and hers was 35.15 years. They had a daughter twelve years old and three sons, whose ages were eight years, three years and nine months respectively. The record discloses their family life was all that could be desired or expected under the circumstances.

The question here is: Has a wife a cause of action for the loss of consortium of her husband caused by the negligent act of a third person where the husband survives the injury only a few minutes?

I. Consortium may be defined as the affection, aid, assistance, companionship, comfort and society of one's spouse. This court has defined it as 'conjugal fellowship of husband and wife; and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation.' Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480, 482; Price v. Price, 91 Iowa 693, 60 N.W. 202, 29 L.R.A. 150, 51 Am.St.Rep. 360; McGlothlen v. Mills, 221 Iowa 204, 265 N.W. 117; 41 C.J.S. Husband and Wife § 11, p. 402; 42 C.J.S. Husband and Wife § 665, p. 318; Hitaffer v. Argonne Co., Inc., 87 U.S.App. D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366.

In this state consortium is deemed to be a property right. Acuff v. Schmit, supra; Price v. Price, supra.

Appellant relies upon the Acuff case decided September 18, 1956 as supporting her position. In that case the petition alleged that due to defendant's negligent operation of an automobile her husband was permanently disabled and rendered incapable of carrying on marital relations. It stated that the plaintiff had been permanently deprived of the aid, services, support, affection, society, companionship and consortium, including sexual relations of her husband and asked damages on account thereof. This court held she had stated a cause of action.

Appellant here alleged 'That the negligence of the Defendants was the proximate cause of said injuries and death.' It is conceded in the record the case was tried on the theory that Lampe died within a few minutes after the collision. This action in which the death of appellant's husband occurred almost if not simultaneously with the collision is readily distinguishable from the Acuff case. In that instance the plaintiff's husband lived but his condition was such, according to the allegations of the petition, that his wife was deprived of his consortium. The instant suit is what is sometimes referred to as a 'death case,' death being practically instantaneous. No case has been called to our attention, nor have we been able to find one, which holds that a wife may recover for loss of consortium where her husband's death followed immediately the negligent act causing the death. There is ample authority for holding that where a negligent act causes the instantaneous death of a husband his wife has no cause of action for loss of consortium. Acuff v. Schmit, supra; Major v. Burlington, C. R. & N. Ry. Co., 115 Iowa 309, 88 N.W. 815; Lane v. Steiniger, 174 Iowa 317, 156 N.W. 375; Section 635.9, Code 1954 I.C.A. An able discussion of the issues here involved and a review of the authorities will be found in the recent case of Hoekstra v. Helgeland, S.D., 98 N.W.2d 669.

It is the law of this state, as all will concede, that damages for wrongful death accrue to the administrator of a decedent's estate. Neither husband nor wife may sue in an individual capacity for the damages resulting from such wrongful death. Lewis v. Maddy, 187 Iowa 603, 174 N.W. 346; Major v. Burlington C. R. & N. Ry. Co., supra; Jacobson v. Fullerton, 181 Iowa 1195, 165 N.W. 358. Sec. 635.9, Code 1954, I.C.A., provides as follows: 'When a wrongful act produces death, damages recovered therefor shall be disposed of as personal property belonging to the estate of the deceased, but if the deceased leaves a husband, wife, child, or parent, it shall not be liable for the payment of debts.'

In Lewis v. Maddy, supra, Evans, J., it is said: 'Under many of our previous cases, however, it has been held that the husband may recover individually for loss of consortium and services of the wife and for expenses incurred in her treatment during the period intervening between the time of injury and the time of death.' The opinion further states: 'The contention of the plaintiff, then, is reduced to this: That she is entitled to recover for the loss of consortium during the space of one hour intervening between the injury and the death. Without passing upon the legal question thus presented, it is enough to say that the damages for such a brief space of time would necessarily be nominal. We so held in Lane v. Steiniger, 174 Iowa , 319, 156 N.W. 375, and in Jacobson v. Fullerton, 181 Iowa 1195, 165 N.W. 358. We could not, therefore, reverse for the purpose of allowing nominal damages, even though the legal contention of plaintiff were sustained. We shall not, therefore, undertake to pass upon it.'

In Lane v. Steiniger, supra [174 Iowa 317, 156 N.W. 376], an action by a husband to recover damages on account of his wife's injury and death due to being struck by a truck, we said: 'Had death been instantaneous, no right of action would have accrued to the husband. * * * But she survived several hours after the collision, and because of this the husband might have maintained an action for loss of his wife's society. The damages for this necessarily would be inconsiderable, * * * 'the damages as to the plaintiff's wife must cease with the period of her existence.' * * * '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.'...