Nichols v. Schweitzer, 89-1507

CourtUnited States State Supreme Court of Iowa
Citation472 N.W.2d 266
Docket NumberNo. 89-1507,89-1507
PartiesMary A. NICHOLS, Individually and as Administrator of the Estate of David E. Nichols, Appellee, v. Marilyn SCHWEITZER, Appellant. Nancy L. WEST and Steven W. West, Individually and on behalf of their minor children, Jodi L. West and Bret S. West, Appellees, v. Marilyn H. SCHWEITZER and James Schweitzer, Appellants, and Mary Nichols, Administrator of the Estate of David E. Nichols, and Daniel Thompson, Defendants.
Decision Date19 June 1991

William H. Roemerman and Brad J. Brady of Crawford, Sullivan, Read, Roemerman & Brady, Cedar Rapids, for appellants.

Charles T. Traw of Leff, Leff, Leff, Haupert & Traw, Iowa City, for appellee Mary Nichols.

Robert N. Downer and Paul J. McAndrew of Meardon, Sueppel, Downer & Hayes, Iowa City, for appellees West.


SNELL, Justice.

On February 18, 1987, at approximately 3:25 p.m., defendant, Marilyn Schweitzer, was driving an automobile owned by her and her husband, James Schweitzer, east on Iowa Highway 22 between the towns of Wellman and Kalona. Also heading east, somewhere behind the defendant, was David Nichols. Nichols was driving a semi tractor-trailer combination loaded with live hogs. At the same time, plaintiff, Nancy West, was driving a school bus west on the same highway.

Highway 22, in the area where the accident occurred, descends into the English River Valley. The highway crosses the English River by means of two sequential bridges (commonly known as the "twin bridges"). The bridge to the east crosses the main channel of the river while the bridge to the west is the "overflow bridge." Eastbound vehicles approach these bridges by means of a long sweeping curve in the roadway.

As Marilyn Schweitzer approached the westerly bridge from the east, she noticed the oncoming bus operated by Nancy West. The record reflects that Schweitzer determined that at her present speed, she would meet the bus on the bridge, and felt she could not safely traverse the bridge while it was occupied by the bus. She therefore decided to reduce her speed to allow the bus to proceed through the bridge first. Schweitzer testified that she reduced her speed by tapping her brakes to release the cruise control and then let the car gradually decelerate against its engine. She also testified that she did not again use her brakes until she saw that the semi operated by Nichols was passing her and that a collision between the truck and bus was imminent.

As Schweitzer decelerated, Nichols pulled into the left (westbound) lane to pass her. Nichols did not regain his own lane prior to colliding with the school bus driven by West. Schweitzer did not collide with any vehicle. As a result of the accident, Nichols died and West was severely injured.

Mary Nichols, David Nichol's wife, sued Marilyn and James Schweitzer on behalf of herself and as administrator of David's estate. In a separate action, Nancy West and her family sued the Schweitzers, Mary Nichols as administrator of her husband's estate, and David Nichols' employer, Daniel Thompson. The two lawsuits were consolidated by the court for purposes of discovery and trial. Prior to trial, the Wests settled their claims against Mary Nichols and Daniel Thompson.

The case proceeded to trial. The jury determined that West was zero percent at fault, Mary Schweitzer was forty-nine percent at fault, and David Nichols was fifty-one percent at fault. The court entered a judgment in favor of Nichols against the Schweitzers for $82,000 for loss of spousal consortium based on the jury's determination. The court also entered judgment for the Wests against the Schweitzers reduced by the percentage of fault of Nichols, with whom the Wests had settled. However, the court did not reduce Mary Nichols' consortium recovery by the percentage of fault attributed to her husband.

The Schweitzers now appeal alleging that the district court erred in: (1) holding that the fault of Nichols, the deceased semi driver, did not reduce his wife's consortium claim; (2) giving Nichols and the Wests four jury strikes each and only giving the Schweitzers six strikes instead of eight; (3) instructing the jury on an alleged violation of failing to use brake lights; and (4) failing to allow a state trooper to testify concerning the chronology of events leading up to the accident. We affirm.

Our scope of review is determined by the nature of the trial proceedings. Bates v. Allied Mut. Ins. Co., 467 N.W.2d 255, 257 (Iowa 1991). This action was filed and tried at law. Therefore, our review is for correction of errors at law. Iowa R.App.P. 4.

I. Comparative Fault and Consortium.

In Instruction No. 22, the trial court advised the jury on the law applicable to any fault of David E. Nichols and its effect on any recovery by his wife, Mary A. Nichols. Instruction No. 22 stated that:

After you have compared the conduct of the Defendant, Marilyn Schweitzer, David E. Nichols, and Nancy West, if you find David E. Nichols was at fault and his fault was more than 50% of the total fault, the Plaintiff, Mary A. Nichols as Administrator of the Estate of David E. Nichols cannot recover the damages set forth as items 1 through 3, inclusive, of Instruction No. 35.

However, if you find David E. Nichols' fault was 50% or less of the total fault, then I will reduce the total damages by the amount awarded under items 1 through 3 inclusive of Instruction No. 35 by the percentage of fault of David E. Nichols.

Instruction No. 35 stated that:

If you find Mary A. Nichols, as Administrator of the Estate of David E. Nichols, is entitled to recover, it is your duty to determine the amount. In doing so, you shall consider the following items in determining an amount which will fully compensate the Estate of David E. Nichols for the damages incurred:

1. Present value of the additional amounts David E. Nichols could reasonably be expected to have accumulated as a result of his own effort if he had lived out the normal term of his natural life.

2. The interest on the reasonable burial expenses of David E. Nichols from the time of his death until the time when those expenses would be paid. The amount cannot exceed the reasonable cost of the burial, which in this case is $4,072.32.

3. The present value of the amount of financial support which David E. Nichols would have contributed to his spouse, Mary A. Nichols, but for his death. Damages for financial support are limited in time to the shorter of David E. Nichols' or Mary A. Nichols' normal life expectancy.

4. The present value of the services which David E. Nichols would have performed for Mary A. Nichols but for his death. This is also known as loss of spousal consortium. "Spousal consortium" is the fellowship of a husband and a wife and the right of each to the benefits of company, cooperation, affection, the aid of the other, in every marital relationship, a general usefulness, industry, and attention within the home and family. It does not include loss of financial support from the injured spouse. Damages for spousal consortium are limited in time to the shorter of Mary A. Nichols' or David E. Nichols' normal life expectancy.

The jury found that David E. Nichols was fifty-one percent at fault which thereby barred a recovery by his wife for items 1, 2 and 3 of Instruction No. 35. Item 4 which allowed a recovery for loss of spousal consortium remained viable. On this issue the jury awarded Mary A. Nichols $82,000.

Jury Instruction No. 22A spoke to this issue as follows:

When you consider the Plaintiff's claim for loss of spousal services, also known as spousal consortium, to Mary A. Nichols, you will not charge Mary A. Nichols with the fault of any other person, and I will not reduce the amount of damages awarded for this claim.

On receiving the jury verdict, the court did not offset any fault of David E. Nichols against the award of $82,000 to his wife, Mary, for loss of consortium, even though he was adjudged fifty-one percent at fault for the accident. This was consistent with Jury Instruction No. 22. Appellants Schweitzer, however, assert this as an error of law on the ground that the fifty-one percent fault should bar the consortium claim of David's wife, Mary.

We have previously considered the effect of fault by an injured person on the spouse's claim for loss of consortium. In Fuller v. Buhrow, 292 N.W.2d 672, 676 (Iowa 1980), we decided that a spouse who has been deprived of consortium through the negligence of a third party should not be barred by the negligence of his own spouse. Later, in McIntosh v. Barr, 397 N.W.2d 516, 518 (Iowa 1986), we held that a husband may not be required to contribute to a judgment in favor of his wife against a third-party tortfeasor arising out of the husband's injury due in part to his own negligence. The McIntosh jury found that Barr's wife, Joan, had incurred damages for loss of her husband's consortium in the amount of $25,000. Although her husband Richard Barr was thirty-five percent at fault in the accident, her consortium damages were not reduced thereby. We reasoned that:

The services, society, companionship, affection, and other elements of consortium are valuable and necessary ingredients of a satisfactory interspousal relationship. They are not, however, the kind of services the deprivation of which will give rise to a tort action between spouses....


A husband's interest in consortium is a right to such services as his wife voluntarily provides him, and the law protects this interest against interference by third parties. However, because the husband's interest is only in services voluntarily provided him, a wife is not under a legally enforceable duty to provide such services. Consequently, she cannot be held liable for either negligently or intentionally denying him consortium.

McIntosh, 397 N.W.2d at 517-18.

When no liability could attach to Richard Barr...

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