Wardlow v. City of Keokuk

STUART, Justice

(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), 261 Minn. 347 , 113 N.W.2d 355, 359 . Neither cite authority for this approach to statutory construction and it appears to be contrary to the established rules.

“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), 248 Iowa 839, 845 , 82 N.W.2d 849, 852 ; Case v. Olson (1944), 234 Iowa 869, 872 , 14 N.W.2d 717, 719 ; 50 Am.Jur. 224, Statutes, § 326; 82 C.J.S. Statutes §§ 329, 351 and 353.

The quotes in the majority opinion from Wycko v. Gnodtke (1960), 361 Mich. 331 , 105 N.W.2d 118 , Fassner v. Andert (1961), 261 Minn. 347 , 113 N.W.2d 355 , and Lockhart v. Besel (1967), 71 Wash.2d 112 , 426 P.2d 605 , are sociological arguments which show the construction of “pecuniary loss” to include loss of companionship and society is based on present day conditions and the changes that have occurred since the enactment of the statutes. They offer good reasons why pecuniary loss or loss of services is no longer a good measure of damages for the wrongful death of a child, but do not support the conclusion that the legislature intended loss of companionship and society in such term when the statute was enacted.

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), 383 Mich. 251 , 174 N.W.2d 836 , the Michigan court in a 5-2 decision repudiated the point in the Wycko case upon which the majority relies and now *450 holds that companionship and society are not proper elements of a pecuniary loss. The court in that case takes the position that language so indicating in Wycko was just dictum.

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), 202 Iowa 517, 522 , 210 N.W. 573, 575 , we said: “A father can have no reasonable expectation of pecuniary benefit from the continued life of a son who, although possessing a strong filial love, is without property and is incapacitated from labor of all kinds * * See also: Carnego v. Crescent Coal Company (1914), 164 Iowa 552, 660 , 146 N.W. 38, 42 ; Hopkinson v. Knapp & Spalding Co. (1894), 92 Iowa 328, 332 , 60 N.W. 653, 655 ; Benton v. C., R. I. & P. Railway Co. (1881), 55 Iowa 496, 500 , 8 N.W. 330, 332 .

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.

MOORE, C. J., and LeGRAND, J., join in this dissent.