Madison v. Colby

Ambert Marie Alan MADISON and Lee

Madison, Appellants, COLBY,

Charles and Ruth Ashworth

Plaza, Inc., Plaza, and Ashworth

Ltd., Appellees.

No. 69148.

Supreme Court of Iowa.

April Plaza, Inc., Colby,

Ruth and Ash- Ashworth Plaza, Ltd. The case worth arose from Ambert’s claim that she fell and was in- jured separate park- on two occasions in a ing lot maintained defendants. The lot adjacent was to a West Des Moines office building where Ambert worked. She sought damages injuries for her and her sought damages Alan husband for loss of Upon ease, consortium. submission of the jury returned a verdict for for $700 Ambert on her claim and denied appeal, plaintiffs to Alan. In this seek reversal and a trial new based on several assignments of error. We reverse re- mand. questions

The determinative are whether overruling plain- the trial court erred in hearsay objection tiffs’ to admissibility of a overruling plaintiffs’ medical record and in objection to an instruction on the elements of Alan’s consortium claim.

I. The medical record. Ambert’s first treating physician was Dr. Burton Rout- man who saw her before and after her first lot, parking in fall which occurred on January 1979. mid-1979 the doctor Israel, testimony moved to and his was not offered at trial. Defense counsel used a Routman, purported office record of Dr. cross-examining in Ambert and her husband. evidence, then in

The record was not objected plaintiffs’ counsel on various interpreta- grounds to defense counsel’s during tions of and references to the record Stephen Henry Hardy A. Harmon and D. pass cross-examination. We the issues Moines, Sidney, appel- & Des for of Grefe preserved whether error was and whether lants. error reversible occurred these ex- Riley Ronald A. and David L. Brown of changes. We do consider these incidents Hansen, Moines, Riley, Des McClintock & background deciding whether it was appellees. for reversible error for the trial court to over- plaintiffs’ timely hearsay objection rule report. defendants’ offer of the McCORMICK,Justice. during The record was offered the testi- Hall, mony Christopher of Dr. B. a Minne- Plaintiffs Ambert Marie Madison and chiropractor sota who treated after Ambert appeal judgments Alan Lee from Madison plaintiffs’ move Dr. negligence to Minnesota jury entered on verdicts their against and Hall testified he action defendants Charles obtained Dr. Rout- ob- which she treating cerning him in other accidents for man’s record to assist Am- and ex- tained care. The nature medical bert. care and injuries, tent of other Because Dr. Routman’s office them, significant is- became treatment part prove least in record was offered at freely acknowledged the sues. Ambert it, the truth the matters asserted disputed defendants’ other incidents but hearsay. Fingert, record was See State v. they respon- suggestions largely were 249, (Iowa 1980). In de 298 N.W.2d 251 damages. The office record sible for her fending admissibility, its defendants con by defend- of Dr. Routman was relied on correctly it was admitted under Iowa tend theory their of defense presenting ants in (1981), the business Code part in it and played a vital before of statute in effect the time records after was admitted into evi- the document problems with conten Two exist this trial. to a dence. We conclude Ambert is entitled tion. new trial. First, as a business record if offered addition, denying the verdict because of Dr. Rout- prove of Dr. Hall to assertions may Alan for loss consortium man, required would be exclusion proof of have on failure of been based hearsay” “hearsay or double the within not damages, we are unable to find he was hearsay explained in In re rule Estate of prejudiced His by admission of the exhibit. 721, (Iowa 1975). Poulos, 727 directly damage claim was related incorporated in concept This is now Iowa strength proof concerning the of Ambert’s Hearsay within Rule of Evidence 805. injuries falls. seriousness of her in the two hearsay come an separately must within for We therefore also reverse and remand hearsay rule to admissi exception be new Alan’s claim. trial on No that would make Dr. exception ble. II. issue claim. One The consortium as Dr. part Routman’s admissible record likely on concerns the cor- to recur retrial Hall’s record has been identified or demon on the trial court’s instruction rectness of strated here. Alan’s for loss of elements of claim Second, requisites for the foundational objec- plaintiffs’ Over consortium. admissibility the record under section marital tion the court refused to include They are de 622.28 were not established. Plain- one of those elements. services as Fisher, 380, 178 lineated in N.W.2d State v. overruling tiffs court erred in contend the (Iowa 1970). Specifically, defendants 382 objection. their Dr. record failed to show that Routman’s substantially court’s instruction trial regular course was made of business loss of con- conformed to delineation of at or time of the events recorded about the Schmit, 248 sortium elements Acuff or that of information sources 272, 274, Iowa 481-82 preparation method of were such as (1956). Those elements constitute its Iowa indicate trustworthiness. Cf. of the doctrine and “sentimental version” 803(6)(establishing present R.Evid. founda husband “conjugal fellowship include requirements). tional wife; of each We that the trial court erred find cooperation, affection and aid of company, overruling plaintiffs’ objections the ex Id., every conjugal relation.” other presumption We find that the hibit. also court con- 78 N.W.2d at 482. accompanies prejudice the erroneous which or this version with a “material” trasted was not overcome admission of evidence “practical” not version which “Included this case. fellowship conjugal husband and wife, as if not prominent, to mini- but also service Much of defense was devoted factor; in the not the ser- Ambert dominant so much mizing injuries suffered performance resulting vice of labor property. the two falls on defendants’ earning wages, con- as the service was adduced Considerable evidence which contributed and in all Acuff, given assisted the wife was same limited Id., relations of had. domestic life.” husbands then N.W.2d at 481-82. Difficulty with the distinction between loss loss consortium and of services was Originally at law a husband parties early noted in an case. See could recover for loss his wife’s services Fullerton, Jacobson v. Iowa part of a consortium claim. Id. This (1917) 165 N.W. (“Appellant changed in wrongful death cases when the argues that cannot be distin- given claim lost services was stat- guished from loss of and appellee ute enacted in 1911 to the deceased wife’s attempted concedes that the distinction in Moes, administrator. See Weitl of society some cases between loss A 1941 of services is largely loss of the wife vision- amendment to the an injured statute ary.”). Even under the “sentimental” ver- right. wife same The last amend- consortium, sion of husband could re- reciprocal gave rights ment statute for cover loss of his wife’s aid in every to the husband and the husband’s adminis- aspect of conjugal relationship. their Price trator. See 1965 G.A. ch. 427. The stat- Price, 693, 697-98, 202, 91 Iowa 60 v. N.W. ute, appears which Code as (1894), approval 203 cited with in Acuff, 613.15, provides: 274, Iowa Yet, 248 78 at 482. seeming contradiction of that right, broad any damages action for because of only the wife or her administrator could wrongful negligent injury the or or death for her as a recover services housewife and woman, a be of there shall no disabilities head and “administrator the internal af- restrictions, recovery may and be had or fairs her home.” See DeMoss v. Walk- account on thereof in the same manner er, 911, 914, 811, 242 Iowa 813 damage as cases of because of the (1951). wrongful negligent injury or or death of persuaded this by court was the she, a man. addition or her adminis- Argonne landmark decision of estate, may for

trator her recover for Hitaffer Co., (D.C.Cir.1950), 183 F.2d 811 cert. de services, physician’s nursing hospital and nied, 852, 80, 340 U.S. 71 S.Ct. 95 L.Ed. 624 expense, and in the of both case women (1950). In a recognizing wife’s common men, person, appropriate and such or claim, law loss of consortium the Hitaffer administrator, may recover value of argument court addressed an that the ac spouse support parent, services and as or recognized should tion not be because a both, be, in may or as the case such sum right wife did not have a law to jury provided, proper; deems how- Statutory her husband’s services. reforms ever, recovery for these elements of right women a to fruits of their damage may not be had services, argument own was that a children, such, any who, person and action not consortium was warranted. The administrator, whose is entitled to re- rejected argument, finding court that same. cover “ consortium could not be divided into ‘ser hand, conjugal on and Our cases that the vices the one affec demonstrate loss of ” tion, etc., on Id. services element the other.’ at 814. was removed from a hus (quoting Lippman, band’s common Breakdown Con law action loss of con sortium, 651, (1930)). See, 30 Colum.L.Rev. 668 sortium because of the e.g., statute. Ellston, 364, 372, Adopting a sepa Fisher 174 Iowa 156 characterization that the 422, (1916); 425 ration Steiniger, arbitrary N.W. Lane v. elements 317, 319, largely fictitious, 375, 174 Iowa N.W. the court added: 156 376 (1916). right The common law was Consortium, limited although it embraces preclude to double Id. Thus within its meaning ambit of the wife’s recognized the court when wife’s common love, material also includes af- fection, loss of claim law consortium companionship, relations, sexual etc., duty conceptualistic way all welded into uni- the other of marital ty.... It is not the fact that one or mutual The services rendered affection. broadly other of the elements of consortium is one the other [in- injured particular usefulness, in a that general invasion con- industry clude] type may trols of action which be attention the home and within within brought but rather that family. injured as such has been at all. Ill.App.3d v. Mobil Wood Chemical (emphasis in original). The court held 710, Ill.Dec. N.E.2d duplicate recovery that to avoid because of (1977). independent an husband’s tangible intrafamilial value of servic impairment ability support

recover for wife, important is still an factor. This es state his for loss of recognized the modern view of be from the wife’s recov- has that should excluded ery. Acuff, family Id. at 811. this court mutual members to the Unlike aid family did not exclude court of other members the mainte Hitaffer the services prop element. nance of household is a valuable erty right protection. which is entitled to evolved at com- The consortium doctrine Deur, Adams v. 107- See unity in conceptualistic mon law as a this this, Beyond as a conse state, conjugal recognition on based quence of of the im increased awareness rights embraced than a more husband’s practicability attempting separate ownership earnings his wife’s labor concept modern services from elements right support. a wife’s 1894 this and of consortium, the said: of loss of services element court recovery become a has identified with marriage is not one But state entered all of traditional elements purpose and into for the of labor law consortium. highest alone. Considerations of character, happiness comfort and Despite taking a narrow view Acuff contract, parties marriage of the to the claim, spousal the elements of a consortium children, give welfare of their to subsequently interpreted this court affection, right compan- each to the practi- word “services” to both the embrace other, ionship, society of the cal and sentimental elements of common wrongfully deprives whoever either of consortium. occurred first law This right may responsible. As that be held it interpreted where Wardlow the word was property right is a valuable when due the parental right to the in relation to recover husband, regarded it so when must be the actual resulting “for loss of services due the wife. injury to or of a minor child” from death Price, 697-98, N.W. at 91 Iowa 60 203. under Iowa Rule of Procedure 8. Civil The part a of this evolution As concomitant companionship court held loss of element, even ary process, the “services” society proper the loss were elements of usage, prior statutory outgrew its stra its recovery. N.W.2d at services 190 448. See Keokuk, City itjacket. See Wardlow v. (Uhlen 1971) (Iowa N.W.2d 454 Subsequently gave the the court same J., original mean hopp, dissenting). In its expansive meaning to “services” Code term “outworn fiction.” ing the became an section 613.15. See Iowa-Des Moines Na- Prosser, Law W. The See Handbook Co., Trucking tional Bank v. Schwerman § 125, (4th 1971). at 894-95 ed. The Torts 1980); (Iowa Hankins away. theory title of services withered See (Iowa Derby, N.W.2d 585-86 § (Second) Restatement of Torts com 1973); Lines, Schmitt Jenkins Truck (1977). f As ment a result: Inc., (Iowa 1969). 664-65 today spouse may be viewed as Thus the term in rule Neither “services” 8 and other, rather each the chattel 613.15 embraced the elements of right to service common law spouse commands a consortium. cases, however, common law deprived the court tor could for the spouse’s recover

nevertheless adhered post-death services, to the view that including loss of con- services element was not recovery embraced within sortium. That was to be distrib- a common loss of deprived spouse law pursuant uted to exclusion of loss of services section 633.336. Acuff spousal from a consortium recovery was parent-child relationship, rule 8 Buhrow, reaffirmed in Fuller v. 292 gave parent right to recover for loss (Iowa 1980). In Weill the consortium, services, including for the recognized independent court a child’s com- period before and after the child’s death. right mon law paren- recover for loss of deprived parent Thus the had both authori- recovery tal consortium but limited to the ty to sue and the recovery “intangible” elements under the ru- the entire loss. bric. See 311 N.W.2d at A plurality child-parent In the relationship, the de- of the court said that “services” as em- prived child had a common law ployed should include recover for “sentimental” consortium until tangible parent services of a injured parent’s death. would have overruled the giving cases parent duplicative right had a under section expansive more definition of that term. 613.15 to deprived recover for the child’s This is how the law stood at the time of services, including consortium, loss of until this court’s decision in Audubon-Exira injured parent’s duplica- death. That Mix, Ready Inc. v. Illinois Central Gulf tive belonged, Railroad 335 N.W.2d 148 injured parent. died, injured parent If the The limited definition of consortium was common law the child no addition- applicable and child common law al recovery. Under section how- loss of An expansive consortium actions. ever, injured parent’s administrator applied definition parental to rule 8 actions could deprived recover for the post- child’s and section 613.15 loss of services claims. death including loss of consor- Duplicative, fragmented and inconsistent tium. That was to be distributed remedies existed. pursuant to the child to section 633.336. categories relationship Three in- are Thus, authority bring the to the action spousal, parent-child, volved: child-par- and recovery belonged deprived and to the relationship ent. each there per- is the spouse injured person rather than the in who bodily through son suffered harm the the common law action for loss of consor- tort, “injured” person. defendant’s an tium. In rule 8 deprived parent claims the person relationship other per- is the authority had both the to sue and to son who suffered the loss of consortium or recovery. Authority the to sue and recov- injury, “deprived” services because of the a ery belonged deprived to the child in the person. parental child’s action for loss of consor- spousal relationship, deprived the Authority tium. to sue for lost services spouse had a common law to recovery belonged recover injured to the for “sentimental” person until the in- deprived spouse rather than the or .consortium jured spouse’s injured spouse death. The child in the action under section If 613.15. duplicative right died, had a person section 613.15 the recovery further deprived spouse’s to recover for the loss of could be made under rule 8 in the case consortium, including until the in- death of a child and in section 613.15 jured spouse’s duplicative death. That re- spouse case of death of a parent. or Au- however, covery belonged, injured thority to the to sue under passed section 613.15 died, spouse. injured spouse If the but, to the administrator under section 633.336, deprived spouse recovery law no apportioned was to be recovery. spouse additional section to the Under and children of the decedent injured spouse’s administra- in accordance with their loss. visionary in sought Audubon-Exira court elements described as Jacob- law, meld the common rule 8 statutory arbitrary largely and as and fictitious son and remedies into a more system. coherent rejected. has been The defini- Hitaffer The case involved common law loss of con- adopted in tion of consortium has brought by spouse sortium claims and expanded tangi- both the been embrace minor child of a man killed in a collision intangible It ble and elements. means the joined with a train. The claims were with thing as “services” in section 613.15. same wrongful an administrator’s death action. issue, an involved in the This leaves motion, Upon the railroad’s the trial court case, concerning the effect of sec- spouse dismissed claims and injured tion 613.15 which authorizes the child, and this court affirmed. 335 N.W.2d person to recover “the value of services decision, In the at 149. course of the we spouse parent” or and bars held, part: in relevant recovery “by spouse of those elements Contrary plurality to the view in children, such, who, any person if Weitl, the term “services” administrator, whose is entitled to recover tangible intangible includes both the provision originated same.” This as a elements of consortium. Id. at 151. measure to ameliorate the harshness of the 2. “Services” in section 613.15 includes recovery common law which allowed ato parental a child’s loss of consortium with- husband for loss of consortium but denied regard parent injured out to whether is reciprocal right preclu- a to the wife. The parent or killed. at 152. When the Id. language obviously pre- sive is intended to action, brings statutory vent double We do not believe belongs just pursuant to the child itas does stepping modify the harshness to section 633.336 when the administrator by enacting of the common law brings duplica- the action. To Id. avoid legislature prevent 613.15 the intended to tion, recog- the child’s common law action taking the courts from consistent addition- abrogated. nized is Id. In addi- Weitl steps improve develop al the com- tion, the child’s are not limited to Wichern, mon law. See Goetzman minority. the child’s 3. “Services” in section 613.15 also in- parallel expansion of consortium spouse’s cludes a loss of consor- rights recovery rights at common law and regard injured tium without to whether the for loss of services under section 613.15 holding or killed. Cases produced merger concepts. has of those contrary, such as Wilson v. Iowa not, however, It produced has an identical Light Power & remedy. law Common awards the dam- (Iowa 1979), are overruled. 335 N.W.2d at ages who suffers the loss. loss, spouse’s 152. As with the child’s injured per- When is made statutory recovery loss of services includes son, the statute would not. tangible intangible both consortium elements. Assembly We believe the General spouse independent 4. The an retains has manifested its intention that the loss of pre-death common law claim for loss of awarded, recovery should be 613.15, consortium. Under section at common law and under rule to the post-death claim for loss of includ- person who suffered the loss. This intent consortium, ing passes to the administra- is reflected in the amendment to section the claim is tor. Id. at 153. each event ordering recovery 633.336 appor to be recovery goes of the same nature and the tioned in surviving death cases to the n. spouse to the suffered the loss. Id. who spouse making and children. this change legislature responded to a con expressed cern definition of consortium this court common law that those who The division of suffer the statutory has thus come full circle. loss should receive the See, e.g., Egan jured person Naylor, support, to recover for loss of (Iowa 1973). Considering distinguished from loss of services. Re- this evidence of intent and covery the relevant for the element is intended statutory history, replenish family law and we be- exchequer statutory against lieve the bar plainly belongs injured person double re- under covery is preempt not intended to the com- injured person’s the statute until the death. spouse mon law action of the who suffers holding As a result of our in Audubon- reiterate, the loss. We therefore as we case, Exira and this all loss of consortium Audubon-Exira, held that “the claim recoveries, pursuant whether to common belongs injured person of an law, rule 8 go or section belongs but to the administrator of a de- person who incurred the loss. In each in- person.” ceased See 335 N.W.2d at 153 n. recovery tangible stance intangi- is for deprived spouse, 2. The not the ble elements as a unified whole. Further- person, has to sue for and recover more, only one of consortium pre-death for the loss of consortium. is allowed. The interpretation This does not affect the relationship category each can be chart- separate independent right in- of the ed as follows:

RELATIONSHIP PRE-DEATH LOSS CLAIM POST-DEATH LOSS CLAIM Spousal Deprived spouse Administrator (recovery for deprived spouse) Deprived Parent-child parent Deprived parent Child-parent Injured parent Administrator (recovery for (recovery for deprived child) deprived child) practical matter, interpretation case, As this In the Alan asserted independent his injured person’s right nullifies an claim for loss of consor timely tium with Ambert’s action. Over personally 613.15 to recover for a objection, the trial court refused to include consortium, or child’s loss of but we tangible loss of services element in its believe this result is demanded the over- damages. instruction on Alan’s Upon re intent, riding legislative spirit of the trial that element should be included in the statute, interplay and the historical be- instruction. tween the common law and the statute. III. upon Other issues remand. We against To assure further double re briefly may address two other issues that covery, it is desirable that consortium ac recur rulings on remand. One concerns relating to joined inju admissibility tions be of evidence with the action for the of oth- er parking falls on the lot and letters from ry injured person. or death of the In some employer Ambert’s manager defendants’ jurisdictions joinder mandatory while about the danger. incidents and The sec- required others it is when feasible. See ond ruling issue concerns a permitting de- Weitl, N.W.2d at 268. Based on the fense counsel to objec- withdraw certain Weitl, explored in we hold considerations tions and statements he during plain- made joined that consortium claims must be with deposition tiffs’ manager. defendants’ person’s ac or administrator’s sepa brought tion If whenever feasible. issue, As to the first “evidence rately, the will be on the consor burden of former place accidents at a is admissible fea joinder was not dangerous tium claimant to show to show its character and knowl edge if at 270. thereof conditions substantially sible. See id. are specially). CARTER, (concurring Justice comparable they are not too similar Co., Penney v. remote.” Smith J.C. in in the result and all specially I concur 794, (1967). 573, 578, 149 N.W.2d Iowa except Division II. majority opinion of the similarity of condi- The determination spousal consor- respect to the issue With relevancy and tions and timeliness involves II, disagree I in Division tium discussed in trial court discretion. is vested See and the rationale. both the result with Stores, Inc., 328 Hy-Vee Food Schuller which the trial court The instructions (Iowa 1982). Evidence N.W.2d 330-31 jury applied the measure of person particular by fall another was of a approved in recovery which we Acuff in ground on the of remoteness excluded 272, 274, Schmit, 248 Iowa person’s case. The fall was subse- this (1956) and have continued to follow 481-82 and in a differ- quent to Ambert's first fall approved the so- since that time. Acuff than Ambert’s second ent winter season called “sentimental version” of consortium in no of discretion fall. We find abuse intangible limiting loss ben- ruling. court’s cooperation, affec- company, efits of relationship. It tion in a marital viewed One of the letters was excluded arising consortium claim as grounds, and we find no on remoteness law, subsequent under the common and our ruling. in that Another abuse of discretion Buhrow, in Fuller v. decisions fall, letter, prior to the first was written (Iowa 1980) Moes, 311 and Weitl v. hearsay, and was then excised to exclude (Iowa 1981) N.W.2d continued hearsay in the admitted. We find no error way in intimated treat it as such and no deprived determination. that the of the any way in related to or affect- was issue, plain to the second As by statutory recovery granted to the ed prevented by tiffs’ counsel the.court was injured spouse section 613.15. Since reading jury objections made from Acuff, in there has been no serious decision during taking by by defense counsel suggestion in our cases that the measure deposi plaintiffs manager’s recovery approved defendants’ therein should be re- (cid:127) objections tion when the were withdrawn examined. pur by defense counsel. Plaintiffs’ trial appellants To the extent that manager’s pose to show that the testi was reexamination, I present case ask for such mony improperly influenced state was continuing favor to adhere to the measure during the of his ments of counsel course recovery established objec objections. Ordinarily withdrawal Moreover, opinion. in that reasons stated they are tions is a matter because deprived recovery by if the measure of addressed court. See Lessen enlarged, is to be I submit that this Norton, 44, 53, hop v. 261 Iowa accomplished by relying should on com- be (1967). Although 112-13 principles invoking rather than mon-law arguable position express language merit its there is statute which case, inapplicable deprived of a find no made claims urged by plaintiffs this we spouse or child. ruling. in the court’s abuse of discretion majority suggests nexus some mat- complaints other concern Plaintiffs’ deprived spouse between the claim of the retrial, likely upon to recur and we ters not supplied by and section 613.15has been our them. do not address Mix, Ready decision Audubon-Exira AND REMANDED. REVERSED Inc. v. Illinois Central Railroad Gulf disagree 335 N.W.2d 148 I CARTER, J., justices except suggestion. All concur with that main thrust of UHLENHOPP, P.J., our decision Audubon-Exira was to of- McGIVERIN WOLLE, JJ., fer a consistent definition of the term “ser- specially. who concur

211 1152, 1156, 188, vices” as used in Iowa Code section 613.15. 259 Iowa (1966), significant portion possible The of that statute for this would not have been if purposes present pro- belong injured of such claims did not to the our discussion party. vides: men, the case of both women and [I]n legislature amended Iowa person,

such appropriate or the adminis- provide so as to Code section 633.336 that trator, may recover the value services of by recovery under section 613.15 spouse parent, or as or support personal representative of a decedent for both, be, may as the case such sum as support the value of services and shall be jury proper; provided, deems how- by aside set court for benefit of the recovery these elements ever, for of surviving spouse and children. 1976 Iowa damage may by spouse not be had § agree I Acts ch. cannot that this children, such, any person as of the ultimate amendment shifted of who, administrator, or whose is enti- recovery injured under the statute from the tled to recover same. expectant recipients party to the of the lost As we held in Wil- added). (emphasis Although support. our decision services and Light Audubon-Exira involved son v. Iowa Power & application claim, (Iowa 1979), wrongful this statute to a death the N.W.2d that amend- implications opinion spill of that over into merely provides ment how the deceased personal injury is the area of claims. This person’s enlarged right recovery under speaks because the statute to the matter of (Iowa the survival statute Code section involving 611.20) recoverable situations damage shall for those elements injury and death. both by personal representa- be distributed they tive in the event are recovered recovery permitted under section Wilson, decedent’s estate. we stated: support 613.15 is the value of “services and spouse parent,” Nothing rather than services the amendment purports or have parent. change The clear section 611.20 which we said 0/spouse gives wrongful death action its surviv- implication language of this is that orship of recov- recovery spouse” “as a under character. elements services ery are same the amend- belongs injured party as before ment_ changed spouse. Any All that is is the dis- and not to the doubt as damages.... The manner in whether that is the intent of the statute is tribution damages are does not proviso its final that: which distributed removed the ac- change the derivative nature of recovery damage for these elements tion. may not be had and chil- dren, such, who, or any person conclusion, a result of this we held As administrator, entitled to recov-

whose is Wilson wrongful death that the entire er same. personal representative of the under claim 613.15, including portion that in- further indication that Still volving support, of services is loss support under sec- for loss of services and subject contributory neg- defense injured party is belongs tion 613.15 ligence part on the of the decedent. period years fol- the fact that for a Buhrow, Fuller v. in its lowing the enactment of that statute form, adhere to the that the any recovery by personal we continued to view sup- injured party of the of the representative for loss of services and bring person’s personal property own claim for loss port was distributed as ac- exists outside of section wrongful death of the estate. Because and, statutory party’s unlike the posited in this state are on a tions statute, subject cause of ac- not preservation of the decedent’s tion, see, Egan Naylor, e.g., contributory negligence defense of on the Russell, Wendelin (Iowa 1973); part injured party. of the also reaf- We v. Buhrow that while

firmed Fuller LAMPHERE, of a child for which meaning of “services” Richard Andrew permitted under Iowa Rule of recovery is Appellant, 8 is derived from section Procedure Civil in a “services” embraced those Iowa, Appellee. STATE claim for loss of con- spouse’s independent No. 83-62. more limited and involve sortium are at 675-76. intangibles. of Iowa. Supreme Court Audubon-Exira, approved we recov- 11, 1984. April intangible ery post-death loss of for the parental consor- elements an element of “services”

tium as Nothing holding pur- in our

section 613.15. change the measure

ports, spousal consortium

recovery for loss of injured party’s death or

prior to the 613.15. depends it on section

suggest that enlarge invoking spouse, deprived

right of gratuitously nullifies majority injured spouse which recovery by the addition, grants. expressly

that statute issues an adviso- majority gratuitously scope of rule 8 of

ry opinion on the though even Rules of Civil Procedure Iowa „is way in no involved

that rule developing Rather than new

present case. rights persons

rules which affect litigation and in parties to this

who are not interest, parties no have

which solely this case on

I would decide in this claims involved

spousal consortium them as common-

litigation. I would treat meas- adhere to the

law claims and ure of

UHLENHOPP, P.J., and McGIVERIN JJ., WOLLE, special concur- join this

rence.

Case Details

Case Name: Madison v. Colby

Court Name: Supreme Court of Iowa

Date Published: Apr 11, 1984

Citation: 348 N.W.2d 202

Docket Number: 69148

Court Abbreviation: Iowa