Madison v. Colby

• Decision Date: 11 April 1984
• Docket Number: No. 69148,69148
• Citation: 348 N.W.2d 202
• Parties: Ambert Marie MADISON and Alan Lee Madison, Appellants, v. Charles and Ruth COLBY, Ashworth Plaza, Inc., and Ashworth Plaza, Ltd., Appellees.
• Court: Iowa Supreme Court

Page 202

348 N.W.2d 202

Ambert Marie MADISON and Alan Lee Madison, Appellants, v. Charles and Ruth COLBY, Ashworth Plaza, Inc., and Ashworth Plaza, Ltd., Appellees.

No. 69148.

Supreme Court of Iowa.

April 11, 1984.

Henry A. Harmon and Stephen D. Hardy of Grefe & Sidney, Des Moines, for appellants.

Ronald A. Riley and David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellees.

Considered en banc.

McCORMICK, Justice.

Plaintiffs Ambert Marie Madison and Alan Lee Madison appeal from judgments entered on jury verdicts in their negligence action against defendants Charles and Ruth Colby, Ashworth Plaza, Inc., and Ashworth Plaza, Ltd. The case arose from Ambert's claim that she fell and was injured on two separate occasions in a parking lot maintained by defendants. The lot was adjacent to a West Des Moines office building where Ambert worked. She sought damages for her injuries and her husband Alan sought damages for loss of consortium. Upon submission of the case, the jury returned a verdict for $700 for Ambert on her claim and denied damages to Alan. In this appeal, plaintiffs seek reversal and a new trial based on several assignments of error. We reverse and remand.

The determinative questions are whether the trial court erred in overruling plaintiffs' hearsay objection to admissibility of a medical record and in overruling plaintiffs' objection to an instruction on the elements of Alan's consortium claim.

I. The medical record. Ambert's first treating physician was Dr. Burton Routman who saw her before and after her first fall in the parking lot, which occurred on January 24, 1979. In mid-1979 the doctor moved to Israel, and his testimony was not offered at trial. Defense counsel used a purported office record of Dr. Routman, however, in cross-examining Ambert and her husband.

The record was not then in evidence, and plaintiffs' counsel objected on various grounds to defense counsel's interpretations of and references to the record during cross-examination. We pass the issues whether error was preserved and whether reversible error occurred in these exchanges. We do consider these incidents as background in deciding whether it was reversible error for the trial court to overrule plaintiffs' timely hearsay objection to defendants' offer of the report.

The record was offered during the testimony of Dr. Christopher B. Hall, a Minnesota chiropractor who treated Ambert after plaintiffs' move to Minnesota in 1980. Dr. Hall testified that he obtained Dr. Routman's record to assist him in treating Ambert.

Because Dr. Routman's office record was offered at least in part to prove the truth of the matters asserted in it, the record was hearsay. See State v. Fingert, 298 N.W.2d 249, 251 (Iowa 1980). In defending its admissibility, defendants contend it was correctly admitted under Iowa Code section 622.28 (1981), the business records statute in effect at the time of trial. Two problems exist with this contention.

First, if offered as a business record of Dr. Hall to prove assertions of Dr. Routman, exclusion would be required under the "hearsay within hearsay" or double hearsay rule explained in In re Estate of Poulos, 229 N.W.2d 721, 727 (Iowa 1975). This concept is now incorporated in Iowa Rule of Evidence 805. Hearsay within hearsay must separately come within an exception to the hearsay rule to be admissible. No exception that would make Dr. Routman's record admissible as part of Dr. Hall's record has been identified or demonstrated here.

Second, the foundational requisites for admissibility of the record under section 622.28 were not established. They are delineated in State v. Fisher, 178 N.W.2d 380, 382 (Iowa 1970). Specifically, defendants failed to show that Dr. Routman's record was made in the regular course of business at or about the time of the events recorded or that the sources of information and method of preparation were such as to indicate its trustworthiness. Cf. Iowa R.Evid. 803(6) (establishing present foundational requirements).

We find that the trial court erred in overruling plaintiffs' objections to the exhibit. We also find that the presumption of prejudice which accompanies the erroneous admission of evidence was not overcome in this case.

Much of the defense was devoted to minimizing the injuries suffered by Ambert in the two falls on defendants' property. Considerable evidence was adduced concerning other accidents for which she obtained medical care. The nature and extent of other injuries, and the care and treatment for them, became significant issues. Ambert freely acknowledged the other incidents but disputed defendants' suggestions that they were largely responsible for her damages. The office record of Dr. Routman was relied on by defendants in presenting their theory of defense and played a vital part in it before and after the document was admitted into evidence. We conclude Ambert is entitled to a new trial.

In addition, because the verdict denying Alan recovery for loss of consortium may have been based on failure of proof of damages, we are unable to find he was not prejudiced by admission of the exhibit. His damage claim was directly related to the strength of Ambert's proof concerning the seriousness of her injuries in the two falls. We therefore also reverse and remand for new trial on Alan's claim.

II. The consortium claim. One issue likely to recur on retrial concerns the correctness of the trial court's instruction on the elements of Alan's claim for loss of spousal consortium. Over plaintiffs' objection the court refused to include marital services as one of those elements. Plaintiffs contend the court erred in overruling their objection.

The trial court's instruction substantially conformed to the delineation of loss of consortium elements in Acuff v. Schmit, 248 Iowa 272, 274, 78 N.W.2d 480, 481-82 (1956). Those elements constitute the "sentimental version" of the doctrine and include "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." Id., 78 N.W.2d at 482. The Acuff court contrasted this version with a "material" or "practical" version which "included not only conjugal fellowship of husband and wife, but also service as a prominent, if not the dominant factor; not so much the service resulting in the performance of labor or the earning of wages, as the service which contributed and assisted in all the relations of domestic life." Id., 78 N.W.2d at 481-82.

Originally at common law a husband could recover for loss of his wife's services as part of a consortium claim. Id. This changed in wrongful death cases when the claim for lost services was given by a statute enacted in 1911 to the deceased wife's administrator. See Weitl v. Moes, 311 N.W.2d 259, 264 (Iowa 1981). A 1941 amendment to the statute gave an injured wife the same right. Id. The last amendment to the statute gave reciprocal rights to the husband and the husband's administrator. See 1965 G.A. ch. 427. The statute, which appears in the present Code as section 613.15, provides:

In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician's services, nursing and hospital expense, and in the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.

Our cases demonstrate that the loss of services element was removed from a husband's common law action for loss of consortium because of the statute. See, e.g., Fisher v. Ellston, 174 Iowa 364, 372, 156 N.W. 422, 425 (1916); Lane v. Steiniger, 174 Iowa 317, 319, 156 N.W. 375, 376 (1916). The common law right was limited to preclude double recovery. Id. Thus when the court recognized a wife's common law loss of spousal consortium claim in Acuff, the wife was given the same limited right as husbands then had.

Difficulty with the distinction between loss of consortium and loss of services was noted by the parties in an early case. See Jacobson v. Fullerton, 181 Iowa 1195, 1201, 165 N.W. 358, 359 (1917) ("Appellant argues that consortium cannot be distinguished from loss of services, and appellee concedes that the attempted distinction in some cases between loss of society and the loss of services of the wife is largely visionary."). Even under the "sentimental" version of consortium, the husband could recover for loss of his wife's aid in every aspect of their conjugal relationship. Price v. Price, 91 Iowa 693, 697-98, 60 N.W. 202, 203 (1894), cited with approval in Acuff, 248 Iowa at 274, 78 N.W.2d at 482. Yet, in seeming contradiction of that broad right, only the wife or her administrator could recover for her services as a housewife and head and "administrator of the internal affairs of her home." See DeMoss v. Walker, 242 Iowa 911, 914, 48 N.W.2d 811, 813 (1951).

In Acuff this court was persuaded by the landmark decision of Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950). In recognizing a wife's common law loss of consortium claim, the Hitaffer court addressed an argument that the action should not be recognized because a wife did not have a common law right to her husband's services. Statutory reforms gave women a right to the fruits of their own services, and the argument was that a consortium action was not warranted. The court...