Wardlow v. City of Keokuk

UHLENHOPP, Justice

(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. *451 Those are the cases of injury without impact. Restatement, Torts 2d § 436(3). We are concerned here with torts upon the children and with the brief of the parents and their loss of affections of the children.

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, 256 Iowa 506 , 128 N.W.2d 226 ; Fitzgerald v. Hale, 247 Iowa 1194 , 78 N.W.2d 509 ; Leahy v. Morgan, 275 F.Supp. 424 (N.D.Iowa); Blake v. Midland Ry., 21 L.J.Q.B. 233 , 118 Eng.Rep. 35; McCormick, Damages, § 93 (1935); Jones, Civil Liability for Wrongful Death in Iowa, 10 Iowa L.Bull. 169; Comment, 46 Iowa L.Rev. 944.

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, 68 Cal.2d 728 , 69 Cal.Rptr. 72 , 441 P.2d 912 . The Idaho act also provides that “such damages may be given as under all of the circumstances of the case may be just.” Idaho Code Ann., §§ 5-310, 5-311. This language has been held not to cover grief. Checketts v. Bowman, 70 Idaho 463 , 220 P.2d 682 . South Carolina has a broad death act: “In every such action the jury may give such damages * * * as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought.” S.C.Code, 1962, § 10-1954. This sweeping language has been held to include survivors’ grief. Zorn v. Crawford, 252 S.C. 127 , 165 S.E.2d 640 . The Utah act, similar to the Idaho act, has been held not broad enough to encompass grief. Utah Code Ann. §§ 78—11—6, 78-11-7; Webb v. Denver & R.G.W. Ry., 7 Utah 17 , 24 P. 616 .

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, 31 Cal.2d 1 , 187 P.2d 752 . So does the act in Idaho. Hayward v. Yost, 72 Idaho 415 , 242 P.2d 971 . In Kentucky, however, the Lord Campbell version was held to be too narrow to cover lost affection, society, and companionship. Phillip’s Committee v. Ward’s Adm’r, 241 Ky. 25 , 43 S.W.2d 331 . A specific act allowing the item was passed. Ky.G.A. (1968), ch. 30, § 2. But in Louisi *452 ana the Lord Campbell version was held to be broad enough. La.Stat.Ann.Civ.Code, art. 2315; Aymond v. Western Union Tel. Co., 151 La. 184 , 91 So. 671 . The Michigan death-type act allows damages for “pecuniary injury” and was held to include this item. Wilson v. Modern Mobile Homes, Inc., 376 Mich. 342 , 137 N.W.2d 144 ; but see Breckon v. Franklin Fuel Co., 383 Mich. 251 , 174 N.W.2d 836 . The Minnesota death-type act provides, “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 * * Minn.Stat.Ann. § 573.02(1). This includes lost affections, society, and companionship. Fussner v. Andert, 261 Minn. 347 , 113 N.W.2d 355 . The broad Mississippi statute allows such amount “ * * * as the jury may determine to be just, taking into consideration all the damages of every kind * * Miss.Code Ann. § 1543. The item of lost affections is included. Boroughs v. Oliver, 226 Miss. 609 , 85 So.2d 191 . The broad South Carolina act, quoted before, covers lost affections. Zorn v. Crawford, 252 S.C. 127 , 165 S.E.2d 640 . The South Dakota legislature changed the damage language in its act from “pecuniary” to “all” injury, and the item of lost affections was thereafter held recoverable. Lanning v. Schulte, 82 S.D. 528 , 149 N.W.2d 765 . Lost affections were held included in the conventional Lord Campbell type of act in Utah and in Washington. Van Cleave v. Lynch, 109 Utah 149 , 166 P.2d 244 ; Lockhart v. Besel, 71 Wash.2d 112 , 426 P.2d 605 .

,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, 145 Conn. 622 , 145 A.2d 758 . New Hampshire has a similar act. N.H.Rev.Stats.Ann. (1969 Supp.), §§ 556.9, 556.12. Only the deceased child’s damages are held recoverable; parents cannot even recover the value of their minor child’s services. Chaloux v. International Paper Co., 75 N.H. 281 , 73 A. 301 .

The Iowa general statute is of the survival type. Code, 1971, § 611.20; Fitzgerald v. Hale, 247 Iowa 1194 , 78 N.W.2d 509 . This court has said that the recovery sought in death cases must be authorized in the statutes. Lipovac v. Iowa Ry. & Light Co., 202 Iowa 517, 519 , 210 N.W. 573, 574 (“The right of recovery being wholly statutory, an action to recover for death by wrongful act must stand or fall by the terms of the statute.”). The Iowa legislature, however, engrafted two death-type act provisions upon the general survival act. One provision relates only to damages recoverable by survivors of a spouse or parent and so does not reach the present case of survivors of minor children. Code, 1971, § 613.15. The other is found in present Rule 8, R.C.P.:

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 *453 appeared in the intervening codes down to § 10986 of the Code of 1939.

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, 235 Iowa 715 , 17 N.W.2d 517 .

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., 164 Iowa 552 , 146 N.W. 38 . Therefore the case comes down to “actual loss of services”.

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, 211 Iowa 1232, 1238 , 234 N.W. 193, 195 (no recovery on death of minor “for loss of companionship, lacerated feelings, mental pain, or bereavement suffered by his family”). See also DeMoss v. Walker, 242 Iowa 911, 915 , 48 N.W.2d 811, 814 (same regarding death of adult — “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 loss of society.”). Thus parents’ grief and lost affections, society, and companionship are beyond the damages authorized by Rule 8.

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 *454 rule remains as it is. We should, without extending those words beyond their meaning, give them a humane interpretation in keeping with liberal application of wrongful death statutes. We should not confine the damages, under the words “actual loss of services,” to wages for labor in the old common law sense. Household duties performed by girls, family tasks done by boys —in short, any conduct of children which may fairly be called services — should also be included, and evidence of all such conduct should be admissible. This has been the direction of past Iowa decisions considering the term “services”. Since 1911 we have had that term in tort actions for the wrongful death of a wife and mother. 34 G.A. ch. 163, § 1; Code, 1962, § 613.11. The term has been considered by the court, which has held that recovery is not limited to work on which witnesses can place a dollar figure. Thus, the jury may make an allowance for services consisting of household duties which a deceased wife would have performed had she lived. The court said in Glanville v. Chicago, R. I. & P. R. R., 196 Iowa 456, 463 , 193 N.W. 548 , 551:

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.

MOORE, C. J., and STUART and Le-GRAND, JJ., join in this dissent.