Lead Opinion
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 di
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 IOS, 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 chil
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,
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.,
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;
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.,
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,
In other words, the measure of damages for loss of services is the present value
It has been held to be immaterial whether the child is actually earning anything at all. It is also immaterial whether the parent was actually receiving the child’s earnings if it is established that the parent had a right to the child’s earnings and was liable for his support. See in this connection Hopkinson v. Knapp & Spalding Co.,
We point out rule 8 is a restatement of section 10986, The Code, 1939. This or a similar statute has been in the Iowa code since the Revision of 1860. Those statutes and now rule 8 are remedial in nature, Schmitt v. Jenkins Truck Lines, Inc.,
As indicated at the outset of this division, the wrongful or negligent death of a minor gives rise in Iowa to two causes of action, one on behalf of the minor’s administrator for those injuries which are personal to the decedent, section 611.20, the other on behalf of the father for loss of services during minority and expenses incurred on account of those injuries, rule 8. Actions brought under rule 8 are not for the injury to the child but for the injury to the father as a consequence of the injury to the child. See 67 C.J.S. Parent and Child §§ 40 and 41c.
In discussing rule 8 we have referred to the “father” as the one entitled to seek recovery. Of course, this is not meant to ignore the right of the mother under the circumstances set forth in the rule to institute the action.
It is in connection with actions under this rule that plaintiffs urge us to permit the trier of fact to consider loss of companionship and society of a deceased child and mental anguish of the parents resulting from the wrongful or negligent death in evaluating damages in actions brought under the rule.
The author of the annotation in
II. We consider first the assignment based on the exclusion of the element of loss of companionship and society of a deceased minor from consideration.
The court arrived at its decision that this allegation asserted in division 3 of the Wardlow petitions and in all divisions of the Pagitt actions did not constitute a proper measure of damages after noting plaintiffs could not maintain an action in their individual capacities for the death of their children except under the provisions of the rule. It then expressed the view that the right of recovery must stand or fall by terms of the rule since the right cannot be extended to cases omitted from its provisions or applied to those not fairly within its purview. Citing Lipovac v. Iowa R. & L. Co.,
The principle announced in Benton and Carnego v. Crescent Coal Co.,
Plaintiffs maintain in support of their position that in light of this principle the pecuniary value of the loss of a minor child’s'services over and above his cost of support and maintenance, except in rare cases, is but a pure fiction. They cite in support Wycko v. Gnodtke,
The Wycko v. Gnodtke decision is referred to in 27 Ohio St.L.J. 355, where the writer in observing Recent Developments discusses Currie v. Fiting,
“Wrongful death statutes may be classified into three categories with reference to recovery for the loss of society and companionship of a child: (1) statutes expressly allowing relief; (2) statutes allowing damages which are fair and just and under which jurisdictions have split in permitting recovery; and (3) statutes expressly limiting damages to pecuniary loss.
“Prior to 1960 the states in the third category uniformly refused to allow a parent to recover for loss of society and companionship since it was thought not to be a pecuniary loss; but in that year the Michigan Supreme Court, in Wycko v. Gnodtke, supplemented the traditional measure of damages by holding that the loss of society sustained by a parent as a result of a child’s death was a pecuniary loss.” (emphasis in the original)
Soundness of the Wycko decision was questioned by a divided court in Breckon v. Franklin Fuel Company,
Fussner v. Andert,
“ * * * The recovery in such action is such an amount as the jury deems fair and just in reference to the pecuniary loss resulting from such death, * *
The difference in this statute and rule 8, R.C.P. is obvious.
Lockhart v. Besel,
“A father, or in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either is dependent for support, and the mother for the injury or death of an illegitimate minor child, or an illegitimate child on whom she is dependent for support.” It was later amended to provide a measure of damages. See 43 Wash. L.Rev. at 657, n. 17.
The fact there is a trend toward developing a new element of damages recoverable by the father in actions brought by him in his individual capacity for the wrongful death of his minor child is recognized in Leahy v. Morgan,
“ * * * Recent years, however, have brought considerable modification of the rigid common law rules. It has been recognized that even pecuniary loss may extend beyond mere contributions of food, shelter, money or property; and there is now a decided tendency to find that the society, care and attention of the deceased are ‘services’ to the survivor with a financial value, which may be compensated. This has been true, for example, not only where a child has been deprived of a parent, and there is allowance for the value of ‘substitute mother’ care, but also where the parent has lost a child, and substitution is scarcely in the picture.”
In Iowa damages for the value of services and support as a spouse or parent or both are recoverable in actions for wrongful death. Section 613.15, The Code, set out infra.
The other case mentioned, supra, as among those cited by plaintiffs, Leahy v. Morgan, involved an action by administrator for the wrongful death of his deceased son and one by the father and decedent’s mother as plaintiffs individually. Defendants moved to strike and dismiss from plaintiffs’ complaint allegations asserting as a measure of damages great mental pain and suffering to the father and the loss of the “society, services, companionship and affection” of his minor child as not recoverable under Iowa law.
Defendants’ motion was also directed to the administrator’s prayer for exemplary damages. This portion of the motion is immaterial to the case before us.
In interpreting rule 8 of the Iowa Rules of Civil Procedure the court was not moved to strike the allegations regarding mental pain and suffering. The court construed the rule as precluding the mother from prosecuting any claim for loss of services of the deceased minor but determined the rule should not be construed as limiting the mother’s claim in any other way.
The court in arriving at this conclusion felt it necessary to separate “loss of services” from “loss of society, companionship and affection.”
The decision is not helpful to plaintiffs’ position here.
The Supreme Court of Florida commented on the Leahy case in Atlas Properties, Inc. v. Didich,
Although the Minnesota and Washington decisions cited, supra, are based on statutes distinct from our rule 8, much of what is said in those opinions make good sense when applied to the problem before us.
This is particularly true of the following, statement from Fussner v. Andert,
“ * * * As applied to a child, the narrow pecuniary-loss test, which excludes loss of aid, comfort, and society, may have met the needs of the community in the last century when our society was largely rural and a child might be considered an economic asset. The changes which have occurred in the social and economic life of the community since the test was first adopted require a reappraisal of its meaning and application. We must view the death-by-wrongful-act statute in the light of present-day conditions. It must be conceded that the majority of today’s children render far less service to their parents than did children in the last century when the test was formulated. Because of child-*446 labor laws and the great increase in school and college attendance, fewer children work outside the home. It should be agreed that generally the child’s earnings may go no further than to supplement the parent’s considerable financial outlay in educating and rearing him. To say as a general rule that a parent sustains a financial loss from the death of a minor child is not realistic. When the cost to the parent of raising and educating the child is considered, it is apparent that the strict adherence to the pecuniary-loss test would in many instances prevent any recovery whatever. Probable cost of raising him to maturity and educating him would be far greater than the provable value of his services. We cannot agree that loss of earnings, contributions, and services in terms of dollars represents the only real loss the parent sustains by the death of his child. With the passage of time the significance of money loss has been diminished. Conversely, there is a growing appreciation of the true value to the parent of the rewards which flow from the family relationship and are manifested in acts of material aid, comfort, and assistance which were once considered to be only of sentimental character.”
We recognize the court in Fussner speaks of “pecuniary-loss test” while our rule permits recovery for “loss of services.” However, as pointed out this court in Benton v. The C., R. I. & P. R. Co.,
Lockhart v. Besel,
The Lockhart case is the subject of discussion in the observation of Recent Developments, 43 Wash.L.Rev. 654, previously cited.
In addition to the reasoning in those opinions, there is another matter for consideration in determining the question presented — the fact that in order to permit consideration of loss of companionship and society as an element of damages for “loss of services” in actions under rule 8 would not require reversal of any prior decision of this court.
In Cerny v. Secor,
Insofar as the case served as authority for proscribing consideration of pain and suffering of a deceased as an element of damages recoverable by his estate, it was overruled by Fitzgerald v. Hale,
The fact Cerny was an action under the survival statute makes it distinguishable from the case here since section 613.15, which permits recovery as damages in tort actions by the estates of both men and women for the loss of support and services
The case cannot be considered as a basis for decision here.
DeMoss v. Walker,
“Neither the next of kin nor the representative of the estate can recover from the defendant on the basis of sentiment or solace for grief or for loss of society." (emphasis supplied)
This was an action by the administrator for the death of a 77-year-old decedent whose husband had predeceased her by some years. Her six surviving adult children had established homes of their own and she was living alone at the time of her death.
On appeal plaintiff maintained the court erred in instructing the jury on the matters to be considered in arriving at the amount of their verdict. Plaintiff had requested an instruction based on what is now section 613.15, The Code. Complaint is made that the jury was not told they could consider not only the pecuniary loss to decedent’s estate by her untimely death but also her services as a mother in arriving at their verdict.
Recognizing that the statute made provision for the value of a woman’s services as a mother, the court reasoned this to mean value of those services which the evidence shows were rendered by her in her capacity as a mother. This court found that under the record there was no evidence of services rendered by decedent as a mother.
It is in this connection that the quoted statement, supra, was made.
When the court instructs the jury on a certain question there must be some evidence upon which to base such instruction since it is error to submit an instruction having no support in the record and a mere scintilla is not enough. Clubb v. Osborn,
In addition to the quoted statement, supra, the opinion quotes this from Armbruster v. Chicago, R. I. & P. Railway Co.,
In view of its facts the decision does not lend support to the trial court’s decision striking the allegation of loss of companionship and society from the petitions involved.
Statements in Donaldson v. The Mississippi and Missouri Railroad Company,
Because of the frustration that comes to a lawyer from reading a decision of a foreign jurisdiction which refers to its statutes which are not set out in the opinion or in footnotes, we prefer, at the expense of being prolix, to set out section 613.15.
“Injury or death of spouse — -measure of recovery. In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician’s services, nursing and hospital expense, and in the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent or both, as the case may be, in such sum as the jury deems proper; provided, however,
The pronouncements in Fussner v. Andert and Lockhart v. Besel, both supra, support our conclusion that to hold no recovery beyond nominal damages plus medical and funeral bills can be had in actions for wrongful death when there is competent substantial evidence in the record of loss of companionship and society of a deceased minor would render nugatory rule 8 granting the father a cause of action for the death of his deceased unemancipated minor child.
Rule 8, insofar as it provides a remedy for wrongful death, is remedial in character and it is the court’s duty to construe it in the light of current social conditions.
We are not unaware of the argument in support of the proposition that where a statute has received a judicial construction and is substantially re-enacted, such construction may be regarded as having been adopted by the legislature. This is a forceful contention when a court is considering reversing its previous decisions construing a statute. However, even then it does not constitute a bar but merely a fact to be weighed in determining the advisability of changing a previous construction. Fitzgerald v. Hale,
We therefore hold where an action is prosecuted by the father, or in the circumstances permitted by the mother, for the wrongful death of a minor under rule 8 loss of companionship and society of the minor during his minority is a proper element to be considered by the trier of fact in fixing the amount awarded for “loss of services” without giving any consideration for grief, mental anguish or suffering of the parents by reason of such child’s wrongful death.
Since the right of recovery for wrongful or negligent death is wholly statutory, this extended recovery is limited by the precise language of rule 8 to injuries to the father, again except in those circumstances where the rule gives the mother the right of action. Otherwise, the mother is precluded from bringing action for “loss of services” resulting from the death of a minor child.
The rulings of the trial court striking the allegations asserting loss of companionship and society from division 3 of the Wardlow petitions and from all divisions of the Pagitt petitions are reversed so far as the fathers’ right of action is concerned. The mothers’ actions are to be dismissed.
III. Our research does not convince us the element of mental anguish incurred by the parents as a result of the death of their children is a proper matter for consideration in fixing the amount of recovery under rule 8. The ruling of the trial court in this respect is affirmed. See authorities cited in
On remand the trial court shall reinstate the allegations of loss of companionship, society and affection of the deceased children during their minority as plead in the original division 3 of the Wardlow petitions and in all divisions of the Pagitt petitions. The parties shall then proceed on the claims asserted in these divisions in accordance with the Rules of Civil Procedure as actions seeking recovery for injuries to the father.
The cases are therefore — Affirmed in part, reversed in part, and remanded with directions.
All other Justices dissent.
Dissenting Opinion
(dissenting).
I respectfully dissent from the majority opinion. I believe the majority is legislating under the cloak of construction.
As pointed out by the majority, there was no action at common law for wrongful death. Recovery here must be based on Rule of Civil Procedure No. 8 which in its material parts provides: “A father * * * may sue for the expense and actual loss of services resulting from * * * death of a minor child.” Substantially the same provision has been in the Code since 1860. The majority holds “loss of companionship and society of the minor during his minority is a proper element to be considered by the trier of fact in fixing the amount awarded for ‘loss of services’ ”.
While I concede that, in most instances, it is pure fiction to claim a parent suffers a pecuniary loss over and above expenses from the loss of a child’s services during minority under present day conditions and there are sound practical reasons for allowing recovery on some other basis, I believe this is a legislative problem. Our problem is simply one of statutory construction. The question is, what was the intent of the legislature when it created a cause of action in the father for “actual loss of services”?
The majority borrows the sentence, “We must view the death-by-wrongful-act statute in the light of present-day conditions”, from Fussner v. Andert (1961),
“Since the words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted, and the statute must be construed as it was intended to be understood when it was passed, statutes are to be read in the light of attendant conditions at the time of their enactment. A new meaning may not be given the words of an old statute in consequence of changed conditions. The fact that events probably not foreseen by the legislature have occurred, does not permit the court to undertake to enact new law.” 50 Am.Jur. 224, Statutes, § 237. Ferguson v. Brick (1957),
The quotes in the majority opinion from Wycko v. Gnodtke (1960),
The majority points out that the Michigan court has recently questioned the soundness of the Wycko decision. As I read the case of Breckon v. Franklin Fuel Company (1970),
Fussner v. Andert (supra), is authority for the construction urged by the majority, but in my opinion it is pure judicial legislation.
It is true there is no Iowa authority holding that loss of society and companionship are not included in the term “actual loss of services”, but it is obvious from the cases which have considered the problem that loss of services has been restricted to services in the ordinary sense of the word.
In Lipovac v. Iowa Railway and Light Company (1926),
The fact that the actual loss of services is limited to a minor unemancipated child and the fact that the right to recover is restricted to the one legally entitled to the child’s services are further indications that the loss is confined to services the parent could legally require from a child. The loss of society and companionship is not ended because a child reaches its majority nor is the father the only one damaged by loss of society and companionship. The emancipation of a child does not eliminate a loss of his society and companionship from his wrongful death. I do not believe it is possible to conclude that the legislature intended at the time of the enactment to include loss of society and companionship in the phrase “actual loss of services”. The majority does not even make such claim but construes the statute under present day conditions. I do not think this is proper.
I do not deny the inadequacy of the present measure of damages for the wrongful death of a child. If I were in the legislature, I would vote to change it. But, when the cause of action is created by statute and the measure of damages specified therein, I do not believe it is the prerogative of the court to change it, regardless of the merit of the change. We should not legislate under the guise of construction.
Concurrence Opinion
(concurring in part, dissenting in part).
Can the parents of a minor child recover for their grief and loss of affection, society, and companionship in a negligence action for the child’s death? The answer turns on the meaning of “actual loss of services” in Rule 8, Rules of Civil Procedure.
Plaintiffs, two married couples, were the respective parents of four minor children who were swept into an open sewer and drowned, due to defendant’s alleged negligence. Plaintiffs sue as fiduciaries and as parents for the wrongful deaths, and ask the usual items of damages in such cases. Defendant does not attack those items of damage. In addition, plaintiffs ask damages as parents for their grief and for the lost affections, society, and companionship of their children. On defendant’s motion, the trial court ruled that these items of damage are not recoverable. We permitted plaintiffs to take these interlocutory appeals in which they challenge the trial court’s rulings.
We may put aside those cases in which a parent claims a direct tort was committed upon him or her, as where a tort-feasor negligently runs down a child in a pregnant mother’s presence causing her to miscarry.
At common law a personal action died with the victim. Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033. This harsh rule led to Lord Campbell’s Act in England and to similar acts in this country. These acts are of two basic kinds, and the difference between the two kinds is important. The English act and most of the acts in America are death acts; they provide a new cause of action to the survivors for the survivors’ own damages. But in a few states survival acts were adopted, which preserve in the fiduciary a cause of action for the decedent’s damages. The general Iowa act is a survival act and provides in § 611.20, Code, 1971:
All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.
See Cardamon v. Iowa Lutheran Hospital,
Grief and Lost Affections, etc. Under Death-Type Acts. Since parents’ grief and lost affections constitute damages of survivors, and since death-type acts allow survivors to recover their own damages, one would expect those damages to be recoverable under such acts if the language of the particular act is broad enough to include those items. That is exactly what the decisions reveal. The items recoverable under most of death-type acts are couched in terms of “damages,” “losses,” “pecuniary injuries,” “pecuniary losses,” or broader words, and the trend is to give such words liberal application. (Lord Campbell’s Act itself provided broadly that “the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death. * * * ” 9 & 10 Viet. ch. 93, § 2.)
As to grief, some death-type acts have been held sufficiently broad; others have not. The California act provides, “[Sjuch damages may be given as under all of the circumstances of the case may be just * * Cal.Code Civ.Proc. § 376. This broad language has been held to encompass the grief of those left behind. Dillon v. Legg,
As to recovery of lost affections, society, and companionship under death-type acts, the same situation prevails. Frequently the language of those acts is broad enough to comprehend such damage. Thus the broad California act previously quoted authorizes recovery of such losses. Fuentes v. Tucker,
,Grief and Lost Affections, etc. Under Survival-Type Acts. When we come to survival-type acts, however, a different situation exists. Here the damages recoverable are those of the deceased — his medical expense, pain, and loss of future accumulations. Hence one would expect that the damages of the survivors, of whatever nature, would not generally be recoverable. Again this is what the decisions reveal.
Connecticut has a survival statute. Gen. Stats.Conn., Rev.1958 (1969 Supp.), § 52-555. The damages recoverable are those of the deceased and do not include the suffering of the family. Miner v. McKay,
The Iowa general statute is of the survival type. Code, 1971, § 611.20; Fitzgerald v. Hale,
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. (Italics added.)
Rule 8 was originally a statute. It comes down to us from the Revision of 1860, where it appeared in substance as § 2792. It may have originally been founded on the rule of the common law that parents are entitled to the wages of their minor children. 39 Am.Jur. Parent & Child § 31 at 624; 67 C.J.S. Parent & Child § 29 at 730. The Report of Code Commissioners on Civil Practice in 1859 gives no clue as to the history of the provision. The section
For some reason the framers of the Iowa Rules of Civil Procedure decided to take the statute into the rules. Cf. R.C.P. 97 and § 11210, Code, 1939. Therefore, in their report to the legislature in 1943, they proposed Rule 8 as a rule and the discontinuance of § 10986 as a statute. 50 G.A. ch. 278 at pages 288 and 364. The legislature did not disapprove the report, and proposed Rule 8 therefore became a rule with the force of a statute. See 49 G.A. ch. 311, § 2; Phillips v. Catterson,
Since plaintiffs are claiming survivors’ damages, they must bring their items of damage for grief and loss of affections, etc. within Rule 8, more specifically, within the words “the expense and actual loss of services”. Grief and lost affections can hardly be called “expense”. Carnego v. Cresent Coal Co.,
Webster’s Third New International Dictionary ascribes the following meanings to the pertinent words. On the one hand, service means “the condition or occupation of a servant: the serving of a master”; “the performance of work commanded or paid for by another”. On the other hand, grief means “emotional suffering (as caused by bereavement, affliction, remorse, panic, despair)”; affection means “kind feeling: tender attachment”; society means a “companionship or association with one’s fellows: friendly or intimate intercourse”; and companionship means “the quality or state of being a companion” (“companion” means “one that accompanies or is in the company of-another”).
These definitions make evident that in speaking of “services,” on the one hand, and of “grief, affection, society, and companionship,” on the other, we are talking about two different concepts. We would unduly extend Rule 8 by holding that it authorizes recovery of survivors’ grief or of loss of affection, society, and companionship. This court said as much by way of dictum under the statutory predecessor to Rule 8. Cerny v. Secor,
Prosser is cited for the proposition that “the society, care and attention of the deceased are ‘services’ to the survivor with a financial value which may be compensated.” Prosser, Torts, 930 (3d ed.). In none of the cases cited by Prosser, however, did the particular statute restrict the damages to “expenses” and “services”; all involved statutes using broader damage language. Moreover, none of those cases involved a survival act; all were death-type acts.
Two final questions. One is whether Rule 8, as presently written, is a good rule. That question presents an entirely different problem. Plaintiffs strenuously contend that parents should be able to recover for their grief and lost affections. If that is so, the way to change the law is by amending the statutes or by a proposal by this court to alter Rule 8, proceeding in the manner prescribed by § 684.19, Code, 1971. Rule 8 should not be amended by unduly extending its language. Rule 8 is a legislatively-approved rule. Alteration of it requires legislative consent; this court alone is not at liberty to amend it.
The second question relates to the proper application of the words “actual loss of services” in Rule 8 if the language of the
The value of the services of a housewife cannot be quantitatively measured in terms of money. Such services are in a different category than compensated employment ; yet no one will claim that such services are not valuable. They should be recognized in the realm of law as in the domain of economics.
We should apply this rationale to the loss of services of children.
But the rulings of the trial court are correct that “actual loss of services” does not include grief or lost affections, society, and companionship. The rulings should therefore be affirmed in their entirety.