Wardlow v. City of Keokuk, Nos. 54182

• Court: United States State Supreme Court of Iowa
• Writing for the Court: MASON; STUART; MOORE, C.J., and LeGRAND; UHLENHOPP; MOORE
• Citation: 190 N.W.2d 439
• Parties: Charles WARDLOW, Father of Steven D. Wardlow, a Minor and Deceased, Appellant, v. CITY OF KEOKUK, Iowa, Appellee. Charles WARDLOW, Father of Sheri Lynn Wardlow, a Minor and Deceased, Appellant, v. CITY OF KEOKUK, Iowa, Appellee. Noel J. PAGITT and Mary Jo Pagitt, Individually and as natural parents of Randall Lee Pagitt, Deceased, Appellants, v. CITY OF KEOKUK, Iowa, Appellee. Noel J. PAGITT and Mary Jo Pagitt, Individually and as natural parents of Steven Craig Pagitt, Deceased, Appellants, v. CITY OF KEOKUK, Iowa, Appellee.
• Decision Date: 27 September 1971
• Docket Number: 54175 and 54176,Nos. 54182

Page 439

190 N.W.2d 439 Charles WARDLOW, Father of Steven D. Wardlow, a Minor and Deceased, Appellant,
v.
CITY OF KEOKUK, Iowa, Appellee.
Charles WARDLOW, Father of Sheri Lynn Wardlow, a Minor and Deceased, Appellant,
v.
CITY OF KEOKUK, Iowa, Appellee.
Noel J. PAGITT and Mary Jo Pagitt, Individually and as natural parents of Randall Lee Pagitt, Deceased, Appellants,
v.
CITY OF KEOKUK, Iowa, Appellee.
Noel J. PAGITT and Mary Jo Pagitt, Individually and as natural parents of Steven Craig Pagitt, Deceased, Appellants,
v.
CITY OF KEOKUK, Iowa, Appellee. Nos. 54182, 54175 and 54176. Supreme Court of Iowa. Sept. 27, 1971. Rehearing Denied Nov. 8, 1971.

Page 440

Nolan, Lucas & Nolan, Iowa City, for Wardlow, No. 54182.

George E. Wright, Napier, Napier & Wright, Fort Madison, for appellants Pagitt, Nos. 54175, 54176.

Norman & Younggren, Keokuk, for appellee, No. 54182.

George L Norman, Norman & Younggren, Keokuk, for appellee, Nos. 54175, 54176.

MASON, Justice.

Four interlocutory appeals have been consolidated for review in this court. A separate law action to recover damages by reason of the death of each of four minor children was instituted against the City of Keokuk. The trial court had struck from the petitions allegations concerning loss of companionship and society and those relating to mental anguish of the parents as not constituting proper measure of damages. All plaintiffs were granted permission to appeal from this interlocutory ruling. Rule 332, Rules of Civil Procedure.

Plaintiffs make identical contentions in assignments of error. They assert the court erred in striking, (1) the claim for loss of companionship, society and affections of the minor children and (2) the claims for mental pain and anguish suffered as a result of the wrongful death of the minor children. The assignments present the question whether loss of companionship and society of a deceased child and the mental anguish caused the parents by not only the facts but the manner of death are compensatory as damages.

Facts giving rise to these related actions occurred July 7, 1969. Four minor children, Randall Lee Pagitt, age 9; Steven Craig Pagitt, age 8; Steven D. Wardlow, age 8; and Sheri Lynn Wardlow, age 6, were playing in Rand Park, a public park owned and maintained by the City of Keokuk. All four children, while playing in a stream of water, were swept into a storm sewer opening in or near the park and drowned.

Wardlow

The petition filed as a result of the death of Steven D. Wardlow is in three divisions. In each division it is alleged defendant's negligent operation and maintenance of the sewer caused Steven's death. In division 1 Charles Wardlow, as administrator of Steven's estate, seeks $50,000 as damages for loss to his decedent's estate. In division

Page 441

2 Mr. Wardlow sues as administrator for burial and funeral expenses. In division 3 Charles and Sarah Wardlow, as Steven's parents, sue for loss of services during decedent's minority and asserted as a specific element of damage loss of his companionship, society, and affection, all in the amount of $23,900.

A similar petition was filed by reason of the death of Sheri Lynn Wardlow.

Defendant in answer to the Wardlow petitions stated as an affirmative defense the proximate cause of decedent's death in each case was accidental drowning in a flood of natural water.

September 24 defendant moved for dismissal of division 3 of plaintiffs' petitions for the reason they failed to allege a proper element of damages. Plaintiffs filed resistance and moved for adjudication of law points to determine whether those elements of damages objected to were proper.

February 26, 1970, the court, at request of the parties, disregarded the motion to dismiss and ruled on the motion for adjudication of law points. Rule 105, R.C.P. The court, after holding plaintiffs had alleged proper elements of damages for loss of services claimed in division 3, ruled the allegation relating to loss of companionship, society and affection in this division was not a proper element of damage.

March 3, plaintiffs filed an amended and substituted division 3 of the petitions alleging as a specific element of damage, besides loss of services, great mental pain and anguish suffered by the parents, again totaling $23,900.

March 6, defendant moved to strike plaintiffs' amended and substituted division alleging plaintiffs were merely repeating what the court had previously disallowed.

The court agreed plaintiffs' amended and substituted claim of damages, namely reimbursement for great mental anguish and suffering, was substantially the same as those disallowed--loss of companionship, society and affection.

No attack was directed to those divisions in which Mr. Wardlow made claim as administrator. Although the trial court ruled the portion of the claim asserted in division 3 for loss of services was based on allegations of proper elements of damages, the extent of recovery on the claim asserted in this division is directly affected by its ruling that loss of companionship and society of a deceased child and mental anguish of the parents resulting from his death were not proper elements to be considered by the trier of fact in arriving at the amount of award, if any.

Pagitt

The petitions based on the death of the Pagitt children were each in four divisions. In division 1 Noel J. and Mary Jo Pagitt, individually and as natural parents of Randall Lee, sue for funeral expenses, loss of services, loss of companionship and society, and mental anguish in the amount of $50,000 plus five percent interest from date of judgment; in divisions 2, 3 and 4, plaintiffs, as parents, each time changed the theory of defendant's liability, but incorporated the same elements and amount of damage.

An identical petition was simultaneously filed by plaintiffs for the death of Steven Craig Pagitt.

Defendant moved to strike from the various divisions of plaintiffs' petitions the allegations relating to loss of companionship and society and mental anguish as elements of damage for the reason they do not constitute the proper measure of damages. The court sustained the motion.

Here the parents had included as an element for consideration on their claim for damages in each division allegations of loss of companionship and society and the suffering of mental anguish by them as parents resulting from the death of their children.

Page 442

The court's ruling challenged in this appeal affects those allegations as proper matters to be taken into account by the trier of fact in arriving at the amount of award.

I. The right of action for wrongful or negligent death of another was unknown at common law and exists only by virtue of statute. DeMoss v. Walker, 242 Iowa 911, 915, 48 N.W.2d 811, 813. In Iowa damages recoverable for the death of another are engendered by section 611.20, The Code, (survival statute) and rule 8, R.C.P., (wrongful death of minor).

Reference is made in the survival statute to damages for wrongful death in general terms and without specific concern for minor decedents. The statute is in these words:

'Actions survive. All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.' See also sections 611.21 and 611.22.

However, the survival statute is not involved in this matter since only allegations of loss of companionship and society and mental anguish suffered by the parents were stricken from the petitions. Of course, these items could not properly serve as a basis for recovery for death of a minor under the survival statute. These allegations had been asserted by plaintiffs for the purpose of enhancing the amount of recovery possible in the actions brought by them as parents. Hence, our concern is with rule 8, a special provision covering minors. It follows:

'A father, or if he be dead, imprisoned or has deserted the family, then the mother, may sue for the expense and actual loss of services resulting from injury to or death of a minor child.'

Those who may bring the action by reason of injury or death are specified in the rule in addition to the elements constituting the measure of damages for such injury or death.

The elements of damage recoverable under the code section and rule 8 are distinct. The rule purports to encompass all damages recoverable by a father acting in his own right and 'expense' has been interpreted as having reference to 'the reasonable cost incurred for medical attendance, nursing, and the like, including that of suitable burial.' Carnego v. Crescent Coal Co., 164 Iowa 552, 554, 146 N.W. 38, 39.

On the other hand the survival statute relates to damages recovered for the minor's estate by an administrator or other legal representative. These latter damages are then distributed among decedent's heirs according to intestate laws.

See generally 25A C.J.S., Death, §§ 95--110; 22 Am.Jur.2d, Death, sections 125--135; 14 A.L.R.2d 489; and Note, Wrongful Death Damages in Iowa, 48 Iowa L.Rev. 666, 684.

The major element of damages, recoverable under rule 8, is 'loss of services.' It has been long recognized in Iowa as a proper element. See Benton v. The C.R.I. & P.R. Co., 55 Iowa 496, 500, 8 N.W. 330, 332 and Carnego v. Crescent Coal Co., 164 Iowa 552, 561, 146 N.W. 38, 42, Ann.Cas. 1919D, 794.

There are two well-recognized limitations on the right to recover for loss of services. The first restricts recovery to benefits normally accrued during decedent's minority only, Lawrence v. Birney, 40 Iowa 377, 378--379, and the second reduces the recovery by the expense of rearing a child until majority. Benton v. The C.R.I. & P.R. Co., 55 Iowa at 500, 8 N.W. at 332 and Carnego v. Coal Co., 164 Iowa at 561, 146 N.W. at 42. Of course, recovery cannot be had under rule 8 for the death or injury of a minor child who has been emancipated by his father. Lipovac v. Iowa R. & L. Co., 202 Iowa 517, 522--523, 210 N.W. 573,...