Nelson v. Ludovissy, s. 84-765

• Decision Date: 22 May 1985
• Docket Number: Nos. 84-765,84-1245,s. 84-765
• Citation: 368 N.W.2d 141
• Parties: Carol S. NELSON, Appellant, v. Rickey L. LUDOVISSY and James E. Poppe, Appellees. Kevin H. NELSON, Appellant, v. Rickey L. LUDOVISSY and James E. Poppe, Appellees.
• Court: Iowa Supreme Court

Page 141

368 N.W.2d 141

Carol S. NELSON, Appellant, v. Rickey L. LUDOVISSY and James E. Poppe, Appellees.

Kevin H. NELSON, Appellant, v. Rickey L. LUDOVISSY and James E. Poppe, Appellees.

Nos. 84-765, 84-1245.

Supreme Court of Iowa.

May 22, 1985.

John Q. Swift of Swift & Swift, Manchester, for appellants.

David J. Dutton and Bruce L. Braley of Mosier, Thomas, Beatty, Dutton, Braun & Staack, Waterloo, for appellees.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, LARSON and CARTER, JJ.

CARTER, Justice.

In consolidated appeals, the appellants, who are the adult children of a man injured in a collision between a truck and a farm tractor he was operating, challenge the district court's decision that they lack capacity to sue in their own name for loss of parental services and support. For reasons hereafter discussed, we reverse the district court.

On April 8, 1982, Hans Nelson was injured when his farm tractor collided with a truck driven by defendant Rickey Ludovissy and owned by defendant James Poppe. On March 2, 1984, Hans Nelson and his wife Lucille Nelson commenced an action against defendants seeking damages for Hans's injuries and also seeking damages for lost services and support to Lucille and Hans's children who were minors at the time of the commencement of the action. No claim was made in this action for lost services and support on behalf of the Nelson children who were adults.

Appellant Kevin Nelson, who is Hans and Lucille Nelson's son, and was an adult at the time of Hans's injury on April 8, 1982, commenced an action against defendants on March 8, 1984, seeking to recover damages for loss of his father's services and support as a result of defendants' negligence in causing the collision. His petition did not allege his age or date of birth. On the same day, appellant, Carol Nelson, Hans and Lucille's daughter, commenced an action making a similar claim. Her petition recited her date of birth which revealed that she was a minor at the time of the April 8, 1982 collision, but had attained her majority prior to bringing the action against defendants.

The defendants each moved to dismiss the claims in these actions on the ground that Kevin and Carol lack capacity to sue on these claims. These motions to dismiss were granted by the district court on May 1, 1984. On May 9, 1984, both Kevin and Carol amended their petition so as to allege that "it is not feasible to join ... this claim with the injured person's action." In addition, Kevin alleged in his amendment to petition that he was an adult at the time of the injuries for which claim is being made.

On May 22, 1984, defendants filed a special appearance, alleging that the district court's order granting their motion to dismiss was a final judgment terminating the action and that, therefore, the court was without jurisdiction to further consider these claims, including the allegations contained in the amendments to petition. The district court sustained each of these special appearances on July 2, 1984. These appeals are from that order but also seek to review a claim of error by the district court in sustaining defendants' motion to dismiss based on lack of appellants' capacity to sue. ¹ Other facts and circumstances which bear upon the issues to be determined on appeal will be discussed in connection with our consideration of the legal questions which are presented.

At the outset, we note a partial confession of error on the part of the defendants. They concede for purposes of this appeal that Kevin and Carol were entitled to plead over as of right following the granting of defendants' motions to dismiss and that their amendments were timely. As a result, defendants acknowledge that their special appearances, which claimed that the district court was without jurisdiction to further consider the case, were without basis in law.

Rather than conceding that the district court's ruling on the special appearances requires a reversal of the case for further proceedings in the district court, the defendants urge us to (1) treat the special appearances as renewed motions to dismiss; (2) hold that the amendments did not affect the validity of the district court's determination that Kevin and Carol lacked capacity to sue; and (3) terminate the action against defendants on this basis. While ordinarily we would not base our disposition on an issue not raised in the district court, we temper this reluctance somewhat in the present case for two reasons. First, the capacity to sue issue was considered by the district court in its prior ruling on the motion to dismiss. That ruling would substantially affect further proceedings in the court below if the case were simply reversed on the special appearance ruling, and, for this reason, we believe, it is expeditious to review it at this time.

In addition, in Carol's action, we have granted permission to appeal in advance of final judgment from the earlier dismissal order irrespective of the validity of the order on special appearance from which her appeal as of right was taken. Because the issue concerning the earlier dismissal is the same as to both plaintiffs and will affect further proceedings in an identical manner, we consider it without regard to whether it is properly raised in both appeals.

In sustaining the motions to dismiss, the district court relied on the statement contained in Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983), indicating that, "[i]n the case of a parent's injury, the injured parent is the proper party to recover for the child under [Iowa Code] section 613.15." Appellants in the present case contend that, to the extent section 613.15 designated the injured parent as the proper party to prosecute the child's claim for loss of services and support, this is only a statutory "next friend" designation applicable to minor children. The statute should not, they urge, be interpreted as proscribing adult children from suing in their own name to obtain the recovery which, by law, belongs to them.

Although a portion of the Audubon-Exira holding deals specifically with the right of adult children to be compensated for loss of a parent's society and companionship, id. at 152, it does not indicate any distinction between adult children and minor children in the application of those provisions of section 613.15 which govern who shall bring the action. Nor is any distinction between adult children and minor children recognized for this purpose in our later decision of Madison v. Colby, 348 N.W.2d 202 (Iowa 1984), which approves the injured parent bringing the statutory action for loss of services, although the recovery belongs to the child. Id. at 208-09.

Some recognition of a right on the part of adult children to bring such claims in their own name is contained in Beeck v. S.R. Smith Co., 359 N.W.2d 482, 487 (Iowa 1984). The Beeck decision was a response under Iowa Code chapter 684A to a certified question of law submitted by a federal district court. The certified question concerned whether, when a parent is injured during the period of a child's minority, the period of limitations for bringing an action to recover for the child's loss of parental society and companionship is extended as in other types of claims brought on behalf of minor children. The question involved interpretation of Iowa Code section 614.8.

In answering the certified question in the...