Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad
335 N.W.2d 148
Iowa
1983
Check Treatment

*1 MIX, INC., AUDUBON-EXIRA READY A

Corporation, Toepfer Laura Admin Toepfer,

istratrix of Harold Wilfred De

ceased; Individually Toepfer, Toepfer,

Scott A Minor His Mother Friend, Appellants,

and Next

ILLINOIS CENTRAL GULF RAILROAD

COMPANY, Roy Corporation, A

Dishman, Appellees. 68230.

No.

Supreme Court of Iowa.

June

149 Iowa. operated by The train was defend- Toepfer ant Dishman. died at the scene of accident, only survived his wife Lau- by son ra and minor Scott. Laura was named of his estate. fiduciary There are three counts in this wrongful here, death suit. At issue they because dismissed, were are a count for loss of and a count for loss of Scott. of whether these counts should be dismissed is one of law. See Bourjaily County, v. Johnson 167 N.W.2d 630, (Iowa 1969).

A to recover for loss of consortium recognized, been least to some ex- tent, from the days early common law. Schmit, 272, 275, See Acuff v. 248 Iowa (1956). N.W.2d At one time the only was limited so that a husband only could recover for the loss and when his McCullough, Thomas L. City, Sac deliberately injured. wife was Gradually Horne, D. Van Robert of Terpstra, Wilkin- expanded the courts the right to allow re- Horne, son & Van Rapids, appel- Cedar for covery simple negligence. In Acuff a lants. corresponding right recog- in the wife was Johnson, Erb, James L. Kramer of La- negligently nized when her husband was tham, Carlson, P.C., Gibb & Dodge, Fort injured. 279-80, Id. at 78 N.W.2d at 485- appellees. One limitation that was commonly ap plied to law common consortium claims is at the center of the here. At HARRIS, controversy Justice. common law a consortium recovery could be there are Although procedural discrepan- spouse, had in cases where the or later cies we may treat this as an interlocutory the parent, injured. was A loss of consorti appeal from a trial court order dismissing um claim would lie for the limited two claims in wrongful death suit. Ha- injury time between and death. Wilson Toepfer rold was killed when a truck he Co., v. Iowa Power & driving was collided with defendant’s train. (Iowa 1979); Lampe Lagomarcino- v. Among the claims were two for loss of Co., 204, 208, 100 Grupe consortium. On defendant’s motion the tri- ruled, al court on the basis of our decision in Moes, anomaly allowing Weitl v. There was a certain 311 N.W.2d 259 injured spouse parent the claims such a claim for an were not allowable. We grievous think the but not for a more loss when the claims should have been dismissed was killed. A fear of because statute they belonged pri- double the wife was the recovery by to decedent’s legal representative. mary justification Lampe for the rule. See A brief statement of the facts will suf- Lagomarcino-Grupe 251 Iowa at fice. A truck by plaintiff owned Audubon- 208-09, 100 N.W.2d at 3-4. Ready Exira Mix and driven by Harold Toepfer collided with an recovery rights, Illinois Central This dearth of and their freight crossing legis- train at a County, inconsistency, prompted Sac a number of responses.

lative They include section 611.- dence such have services would continued 611.22, statute, our they majority. survival after attained There is no statute, Ques- provides such limitation in the substituting legal rep- Damages Resulting resentative tion of From Recent party death of a Changes, Drake L.Rev. pending Legislative litigation, special damage and two [15 *3 (1966)] nor is there such any provisions, section 613.15 and Iowa R.Civ.P. limitation in the value of the mother’s provides: 613.15 Section services or a protection father’s to their In any damages action for because of children at the critical of their negligent injury the or or death they lives when are to enter about into woman, of a there shall be no disabilities more or less separate distinct and lives restrictions, recovery may or and be had their attaining maturity. Damages on account thereof in the manner as are not restricted to loss of benefits to in cases of damage wrong- because of the plaintiffs legal right. which have a [Au- negligent ful or injury or death of a man. thority.] she, In addition or her administrator The author of the article the Drake estate, her may physician’s recover for supra Law Review “the suggests services, nursing and hospital expense, time element involved in the . .. [fourth men, and in the case of both women support] item —services and would be such person, appropriate or the adminis- from the the date of decedent’s death trator, may recover the value of services until the termination of his normal ex- both, support spouse parent, as or or wife, pectancy expectancy or the of his be, as the may case in such sum as the shorter, might plus whichever be the jury however, deems proper; provided, the case of children until such time as recovery for damage these elements of they might longer no need the decedent’s may by not be had the and chil- support and services.” dren, such, who, of any person jurisdictions Other which have con- whose is entitled to recov- sidered the question of duration of a er same. child’s loss of services suffered as a result provides: Rule 8 parent, parents, “A or the parents’ jury of his deaths have held the may sue for expense and actual loss of fixing is not limited in the award to the services, companionship society result- period the child is a minor. [Authorities.] ing from injury to or death of a minor child.” right children had a to Schmitt I. Our interpretations of section 613.15 care, look forward to advice and counsel have been inconsistent. In v. Jen- Schmitt from Dorothy remaining 33.97 Lines, Inc., kins Track 170 N.W.2d 664- years of expectancy normal life and from (Iowa 1969), we said that the term “serv- years. Theodore for 28.67 Even adult ices” in the section included “af- and married children have the to “guidance”: fection” and expect the benefit of ad- Parental affection for the children guidance. vice and probably will not cease after minority permits jury Our statute to include and the may father still continue to con- in its award the value of support as a tribute to his children’s support. That is parent and contains no limitation as to a question for the jury to decide accord- time during element which a child has the ing to the evidence of the assurance the to financial aid. “In the may give affection sup- aid and limiting absence of statute port maturity. to the child after of a minor child for the death of his jury in considering loss to the chil- pecuniary to loss during minority, parents’

dren their deaths is not limit- may a child recover pecuni- loss of ed to the during they time are ary might reasonably benefits which he minors if it can conclude from the evi- have expected majority, after ... since legislature are restricted such loss that envisioned in the passage benefits to which the enactment and of section 613.15. legal infant had a right.” [Authorities.] In Moines Iowa-Des National Bank v. Schwerman Trucking In v. Derby, Hankins 1980), (Iowa we said: recog- we declined There remains the whether nize a cause of action given trial court should have defendants’ for loss of parental consortium. We rea- requested directing jury instruction soned that a child’s loss of consor- sentiment, grief, to make no award for part was a 613.15 recov- In companionship. the context of ery by parents: relationships, we rea- parent-child find no Further, we find ourselves inhibited assume son to intended declaring from plaintiff that minor 613- loss of “services” as used in section provi- maintainable cause of action *4 15, Code, to have a different mean- sions of section 613.15.... loss of “services” in ing from former latter Iowa R.Civ.P. 8. We construed the Plaintiff reminds in us that Schmitt provision companionship to include loss of Inc., Lines, Jenkins Truck society. and At same the [Authorities.] (Iowa 1969), 664-65 this court said: time, “grief, the term does not include 613.15 permits recovery “Section id., anguish mental and suffering,” the of value services decedents might in- jury retrial the should so be and have training would rendered in structed. educating and their children.... Moes, 311 opinion in Weitl v. “The children had a to Schmitt (Iowa 1981), 263-65 a adopting care,

look forward to advice and coun- interpretation of in the different “services” (mother) sel from Dorothy for the re- section, Be plurality was decision. maining years 33.97 normal of life ex- majority cause a of the members of this pectance (father) and from Theodore join court the interpretation did that years. for 28.67 Even adult and mar- holding falls outside the rule of stare decisis ried children have the to binding and is 20 Am precedent. the benefit of Courts, advice and 2d, 195, at (1965); Jur § guidance.” (1940).1 C.J.S. Courts § Hence the Weitl conclusion that “services” .... clearly per- 613.15 ... [S]ection intangi under section 613.15 did not include recovery mits for all of the elements of ble elements bind furnishes no damages by plaintiff asserted in the mat- ing precedent here. ter before us. It limits procedurally the manner in which proper party and the We think the did not II. by whom, the cause of action may be parental withhold a child’s intend to consor maintained, irrespective plaintiffs as- when a is killed while parent cause phrase sertion that final of section such a when the is allowing parent cause 613.15, is is not italicized injured. Plainly arbitrary such merely an applicable since the injury here for which compelled language result is not parent recovery allowed is is “not the be section 613.15. Such a should injury that the has child suffered.” is either parent allowed when killed injured. Damages parent

We incline more to the belief that who is exactly killed, factual are to situation before us here is recovered an opinion approval Schmitt v. Jenkins Truck in Iowa-Des 1. Our was cited with Lines, Inc., previously Trucking discussed was also a Moines National Bank v. Schwerman plurality opinion. But Co., Schmitt has been cited 288 N.W.2d at 204. Schmitt thus approval majority with in our followed precedent. become authoritative Derby, opinion in Hankins v. 211 N.W.2d at be party bring distributed trial court under sec- it. In the parent’s case of a death, tion injured parent 633.336. When an re- the child’s claim for loss of covers for the jury brought by child the or finder of consortium should be the dece- facts should make a dent’s administrator under section 613.15. separate finding, spe- cially parent’s injury, injured In the case of a fixing any the amount of such recov- proper party ery. Amounts so to recover for the recovered for the child child under section 613.15. To the extent property. are the child’s See Iowa R.Civ.P. (1) granted our in Weitl plurality opinion Conservatorship provisions pro- independent right bring child an such an bate code then become applicable. See (2) action and to the extent it inter- 633.566, .567, Iowa Code and .574 §§ preted intangible section 613.15 to exclude We hold that “services” under 613.- (3) damages, to the extent includes consortium damages, it limited the without regard to whether the parent it minority, is overruled. injured or killed. noted, III. As a claim for loss of This disposition requires a retraction spousal consortium has been held to end at the child’s paren claim for injured spouse; only the death of the consortium, granted tal in Weitl. The term period between the injury and death was “services” in section 613.15 can have but compensable. E.g., Wilson v. Iowa Power meaning one meaning and that should be Co., 373; & 280 N.W.2d at Lampe v. followed in cases of both injury or Iowa at Lagomarcino-Grupe *5 death. Furthermore, 100 N.W.2d at 3. administra aspect Another of the Weitl decision tors post-death spousal could not collect which should be length reconsidered is the for the benefit of the of time parental consortium damages are Weitl, surviving spouse. 311 N.W.2d at recoverable. Weitl held that a child’s dam 263. this spousal On basis Laura’s claim for ages for of consortium should be limit loss consortium was dismissed trial court. ed to the period of the minority, previous In the division we concluded though “even we recognize that adult chil that “services” in section 613.15 should be dren may also benefit parent’s from their interpreted intangible parental to include society and 311 N.W.2d at companionship.” depriving consortium elements to avoid 270. Such a limitation could be said to surviving recovery child of a provide parity with a parent’s limited consortium when a is killed. We 8; recovery of under rule but we think it is now also that a surviving spouse’s conclude unnecessarily scope. limited in As we rec post-death consortium is no less de- ognized Schmitt, adult and mar “[e]ven serving recognition. Accordingly of we ried children have spousal hold that “services” in section 613.- benefit of guid advice and 15 interpretation. should receive the same ance.” 170 N.W.2d at 665. The finder of contrary, Our cases to the are fact should be able to evaluate the extent overruled. of the children’s loss of parental consorti administrator, Laura, should um. The loss will normally be less as the bring post- claim for Laura’s loss of older; gets child but it is not a matter to be spousal death consortium. statute “[T]he solely decided on the basis of the child’s cannot have two meanings, depending on date of birth. See Iowa-Des Moines Na Weitl, the party applied.” to whom it is Bank, tional (“Adult N.W.2d at 204 263. Because the term children can recover loss of services and “services” includes ele support”); Schmitt, 170 N.W.2d at 664-65. ments it also includes the elements of a The trial- court was correct in strik logi consortium claim. There is no ing Scott’s claim for loss of consor distinguish cal reason to between the two because wrong Scott was the claims. law, At wrongful Neither do we believe that a surviv common death actions ing recognized; Iowa spouse’s upon loss terminates the death were and most common law injured spouse. jurisdictions, of an other contrary, On wrongful entirely death again statutory. loss is exacerbated. it Once should be v. Iowa & Wilson Power finder facts to evaluate the ex (Iowa 1979); Major v. Bur of the loss. tent lington C.R. & N. Ry., claim, Laura’s there (1902); (Second) N.W. 815 Restatement fore, passed to the Ha administrator Torts, 925 and comment a §§ brought rold’s death and be should under In Egan Naylor, 208 N.W.2d 915 section 613.15.2 Any recovery by the ad upheld this court the dismissal of a ministrator again subject would be to sec wrongful par- child’s action for death of a tion 633.336. The damages is ent, a claim that here very similar to assert- expec limited the lesser two life on ed behalf of the plaintiff Scott. Schmitt, tancies. See N.W.2d at 664- case Egan wrongful reviewed Iowa’s death statutes, authorities, summarized Iowa IV. We conclude the trial court cor- recognizes confirmed that Iowa no common rectly struck the of plaintiff’s two divisions law action for wrongful Responding death. petition, but wrong parties because argument that our death asserting were them. Both claims should rights statutes do not fashion the same brought be not by categories plain- remedies for different individually. Scott tiff, this Court said: AFFIRMED. It is anomalous that our statutes confer the right to recover for loss of services concur, WOLLE, All Justices except UH- and support of a deceased McGIVERIN, JJ., LENHOPP and who dis- parent on the decedent’s estate rather sent. than on those who incurred the loss. legislative Since the we are WOLLE, (dissenting). Justice *6 judicial remedy. unable to fashion a I agree with the result reached in the 208 N.W.2d at 918. majority opinion. The trial court correctly Just as the would allow majority opinion dismissed the two separate wrongful death the administrator loss of to recover consortium, for claims that for loss wrongful death part consortium as a asserted dece- damages, allowed in Egan, dent’s wife Laura for loss of pa- and that also allow majority so would the now rental consortium asserted the dece- of spousal to recover loss con- administrator son disagree dent’s Scott. I with the sortium, claim wrongful death consistent- grounds on which the majority reaches its rejected. Power & ly Wilson v. Iowa

decision, agreeing rather with the trial 1979); court the separate claims for loss of Schmit, Acuff v. consortium are not allowed under the Iowa (1956). statutes which create thereby delimit causes of wrongful action for death have not wrongful in Our death statutes Iowa. changed deny- since the decisions been ignored argument 2. We have that our either case. The tium” will be the interpretation might spouse seem call for different to adminis- reason the claim shifts from largely (asserting spouse) definitions of the term his- “services” it relates trator 2d, Death, 13, pp. toric. See 22 Am Jur under the section. § This be- belongs spouse explained cause the claim to the our statu- an As injured person belongs tory provides the assertion administrator scheme person. Although wrongful of a deceased death section 613.15 claims under may equitable hold the claim in one situation and not in their distribution under section other, the nature of “services” “consor- 633.336. ing loss of consortium wrongful death ought

cases. We not now create new meas- damage

ures of by judi- death

cial decision when has not

changed the applicable statutes.

I would affirm both the trial court’s rul-

ing and the given ruling. reasons for its McGIVERIN, JJ„

UHLENHOPP and

join this dissent. Iowa, Appellee,

STATE of Wayne HAMILTON, Appellant.

Reed

No. 67906.

Supreme Court of Iowa.

June