Pagitt v. City of Keokuk

• Decision Date: 25 April 1973
• Docket Number: No. 55551,55551
• Citation: 206 N.W.2d 700
• Parties: Noel J. PAGITT, Administrator of the Estate of Randall Lee Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant. Noel J. PAGITT, Administrator of the Estate of Steven Craig Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant. Noel J. PAGITT, Individually and as natural parent of Randall Lee Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant. Noel J. PAGITT, Individually and as natural parent of Steven Craig Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 700

206 N.W.2d 700

Noel J. PAGITT, Administrator of the Estate of Randall Lee Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant.

Noel J. PAGITT, Administrator of the Estate of Steven Craig Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant.

Noel J. PAGITT, Individually and as natural parent of Randall Lee Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant.

Noel J. PAGITT, Individually and as natural parent of Steven Craig Pagitt, Deceased, Appellee, v. CITY OF KEOKUK, Iowa, Appellant.

No. 55551.

Supreme Court of Iowa.

April 25, 1973.

Norman & Younggren, Keokuk, for appellant.

Napier, Napier & Wright, Fort Madison, for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and McCORMICK, JJ.

LeGRAND, Justice.

These cases involving the tragic deaths of two young boys, sons of Noel J. Pagitt and Mary Jo Pagitt, are here for the second time. An earlier interlocutory appeal settled--or so we thought--a parent's right to recover for loss of companionship and society in an action for the wrongful death of his minor children. See Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971). On the subsequent trial of the case, a jury found the city's negligence had accused Randall Lee Pagitt and Steven Craig Pagitt to be swept into a storm sewer. Death by drowning resulted. The estate of each deceased minor was awarded $20,000.00 and the father received $30,000.00 for loss of services of each of his sons. We affirm the trial court.

Two errors are said to justify a reversal. They are: (1) the trial court erred in giving instruction 16 dealing with the measure of damages; and (2) the city is entitled to a remittitur or, in the alternative, a new trial because all four verdicts are excessive.

I. We discuss first the claim of error in giving the damage instruction. After instructing on the elements necessary to find liability, the trial court charged the jury on damages in the event they found plaintiff entitled to recover. We set out the important part of that instruction:

'The loss of services for each child includes the reasonable value of the loss of companionship and society of each child from the date of his death, July 7, 1969, until he reached his majority.

'In this connection, you are further instructed that the damages for loss of services, if any, must be diminished by the probable cost of each child's support and maintenance from the date of the death of each child until each child would have reached his majority.

'You are further instructed that in your consideration of damages for loss of services, if any you find, you are to give no consideration for grief, mental anguish or suffering to the Plaintiff by reason of the childrens' death.

'In connection with the claim of the Plaintiff for the loss of services of Randall Lee Pagitt and Steven Craig Pagitt, or one of them, if any you find, you are instructed that the services of a son in the form of companionship and society to his father cannot be measured with precision but you may take into consideration the circumstances of life of Randall Lee Pagitt and Steven Craig Pagitt, as disclosed by the testimony, including his age, health and strength, his activities in the household and community, and any other competent evidence which may have a bearing upon the claim of the Plaintiff for the loss of companionship and society, allowing therefor such amount as to you may appear to be fair and reasonable under the circumstances.

'You should add together the amounts, if any, you find Plaintiff, Noel J. Pagitt, individually and as father of Randall Lee Pagitt, is entitled to recover on each of the items claimed, and such total will be the amount of your verdict, but in no event can such recovery exceed $150,000.00, being the amount claimed therefor.

'You should add together the amounts, if any, you find Plaintiff, Noel J. Pagitt, individually and as father of Steven Craig Pagitt, is entitled to recover on each of the items claimed, and such total will be the amount of your verdict, but in no event can such recovery exceed $150,000.00, being the amount claimed therefor.'

The city made the following timely objection to the instruction:

'(The last two) paragraphs instruct (the jury) repetitively and at the same time do not consider the diminution for the probable cost of child support and maintenance from the date of death to when (each child) reaches his majority, although that is set forth on the first page of the instruction. In other words, we believe if this instruction is permitted to stand you should add, to the amount, if any, you find for Noel J. Pagitt, individually and as father of Randall Lee Pagitt, is entitled to recover on each of the items claimed, and deduct the reasonable cost of maintenance and support of said child from the time of his death until the time he reaches his majority.

'That same insert should be made in the next paragraph with respect to Steven Craig Pagitt.

'We further object to (that portion) of Instruction number 16, (which is erroneous) because the age, health and strength of the child are not relevant (to a determination of damages for loss of companionship and society) nor (are) his activities in the community relevant.'

The objection is twofold. The first complaint rests upon the asserted failure of the trial court to adequately instruct the jury any award for loss of services, which we said in Wardlow include companionship and society, must be diminished by the probable and reasonable cost of the support and maintenance of the children from the date of their death to the time they would have attained their majority.

The city concedes this limitation appears in the instruction but insists it is misplaced. We are told it should have been put (or repeated) at the end of the instruction, when the jury was charged on the mechanics of reaching the amounts to be allowed as damages.

We find no merit in this objection. The instruction under attack was the only one dealing with damages for loss of services. All elements to be considered were included there. The jury was clearly told to reduce any award for loss of services by the 'probable cost of each child's support and maintenance' from the date on his death to the date he would have reached his majority.

We see no possibility the jury could have failed to understand this instruction. If the jurors followed the instructions, as we assume they did, the amount for loss of services had already been reduced by the probable expense of support and maintenance Before the items of recovery were combined to arrive at the ultimate verdict. The instruction as given is not vulnerable to this objection.

The second ground for objection asserts the trial court erred in letting the jury consider the 'age, health and strength, activities in the household and community and any other competent evidence which may have a bearing upon the claim of the plaintiff for the loss of companionship and society' in arriving at the damages for loss of services.

The city's argument runs this way: While the Wardlow decision established the right of a father (or, in some circumstances, a mother) to recover for loss of society and companionship, it did not point out any guidelines as to what elements could be considered in assessing recovery for that loss. It merely recognized the general principle, leaving the issue otherwise open and unchartered. In giving instruction 16, the trial court set out its own standards, which allowed the impermissible considerations mentioned in the objection to influence the jury's verdicts. Again, we must disagree with the city.

We cannot accept the argument that the characteristics which bear relationship to companionship and society may not be considered in arriving at the value of the loss sustained. The city insists this places a premium on the loss of a 'genius' and discounts the value of an ordinary child or, even worse, that of a mentally or physically handicapped one.

We believe this misconceives the nature of companionship and society. We readily agree a parent may suffer as much or more mental anguish and grief over the death of a handicapped child than over one who has no disability.

However, this is not a factor in the award of damages. These items are specifically excluded. Carefully following the mandate of Wardlow, the trial court told the jury it could not consider 'grief, mental anguish or suffering' in assessing damages for loss of companionship and society. See Wardlow v. City of Keokuk, supra, 190 N.W.2d at 448.

It is unrealistic to say All children furnish the same companionship and society to All parents. The former is defined as an 'association as companions; fellowship'; the latter as used in this context means 'those with whom one has companionship.' The Random House Dictionary (1966).

Quite obviously it is impossible to generalize on the extent to which persons--including parents and children--enjoy each other's companionship and society. This is a highly personal relationship which must of necessity be decided on a case-by-case basis. when it relates to a parent and child, it depends on all the circumstances important in the lives of a Particular parent and a Particular child. It takes into consideration not only the character, age, intelligence, interests and personality of the child but also those same factors as they are possessed, or not possessed, by the parent. After all, it is the parent's loss which is being appraised, and the extent to which he has been deprived of the company of his minor child depends on the ability of the child to offer companionship and society and the ability of the parent to enjoy it.

Recovery for such deprivation went unrecognized by this court until the Wardlow decision. This is our first confrontation with the problem raised by the city's objections to instruction 16. Our previous opinions are of little help, but some from other jurisdictions support the...