holding “[t]he ordinary meaning of the word ‘person’ is a human being who has ‘attained a recognized individual identity’ by being born alive” (citation omitted)
How later courts described this case
- holding “[t]he ordinary meaning of the word ‘person’ is a human being who has ‘attained a recognized individual identity’ by being born alive” (citation omitted)
- recognizing minor child's independent cause of action for loss of consortium of injured parent
- “a minor has an independent cause of action for loss of society and companionship of a parent who is tortiously injured”
- stating, “our role is to construe the statute as we believe the legislature intended it”
Written by the judges who cited it.
Later courts went against this
Overruled by Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad, 1983 Iowa Sup. LEXIS 1545 (1983)
311 N.W.2d 259, 270 (Iowa 1981) (en banc) (plurality opinion), overruled on other grounds by, Audubon-Exira, 335 N.W.2d at 152
Abrogated by Madison v. Colby, 1984 Iowa Sup. LEXIS 1099 (1984)
Id. To avoid duplication, the child’s common law action recognized in Weitl is abrogated.
The opinion
McCORMICK, Justice
(concurring specially).
I concur in division I and the result in divisions II and III of the court’s opinion. I join division II for the reasons stated in the dissenting opinion in Hankins v. Derby, 211 N.W.2d 581 , 586 89 (Iowa 1973). I join division III on the authority of McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971), which I believe was correctly decided. McGIVERIN, Justice (dissenting in part).
I concur in divisions I and III of the majority opinion but dissent from division II.
*274 My dissent to division II rests upon three grounds. First, the interpretation by this court in Hankins v. Derby, 211 N.W.2d 581, 586 (Iowa 1973), of section 613.15, The Code, to cover “all of the elements of damages asserted by (the minor) plaintiff” including loss of companionship, society, care, attention, kindness, guidance, comfort and solace was a correct one. See Iowa-Des Moines National Bank v. Schwerman Trucking Co., 288 N.W.2d 198, 204 (Iowa 1980); Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 664-65 (Iowa 1969). Thus, the determination, in Hankins , that section 613.15 provides a statutory means of recovering damages for a child’s loss of parental consortium as long as the claim is brought by the injured parent or his estate need not be disturbed here. See 211 N.W.2d at 586 . We should follow that precedent.
Second, section 613.15, as interpreted by Hankins , does not violate the equal protection clauses of U.S.Const. Amend. XIV and Iowa Constitution Art. I, sec. 6. The statute permits recovery by the minor child for loss of consortium of the parent but only procedurally requires that the recovery action be brought by the parent, or the parent’s estate.
Third, this is an area where we should await legislative action, if such is needed. Hankins, 211 N.W.2d at 585 . See Fuller v. Buhrow, 292 N.W.2d 672, 674 (Iowa 1980); Stewart v. Madison, 278 N.W.2d 284, 295-96 (Iowa 1979). In Fuller , we refused to usurp the duty of the legislature to consider modification of the doctrine of contributory negligence in favor of comparative negligence even though the latter doctrine had been adopted in thirty-five other states. Fuller, 292 N.W.2d at 673-74 . It follows that we should similarly restrain ourselves here, because only two other states have allowed a minor child’s independent cause of action for loss of parental consortium.
In Stewart , we also refused to abandon the doctrine of contributory negligence and drew an analogy to Boyer v. Iowa High School Athletic Association, 256 Iowa 337 , 127 N.W.2d 606 (1964), to justify the refusal. 278 N.W.2d at 295-96 . That analogy is appropriate here. In Boyer , we found that modification of the status of sovereign immunity was a matter for the legislature, even though the doctrine originated in the courts. 278 N.W.2d at 295 . In Stewart , we said:
Two considerations make the present case [modification of contributory negligence] an even less likely candidate for judicial change. First, the legislature had not directly inserted itself into the issue of sovereign immunity prior to Boyer ; it remained almost solely a creature of the courts. On the other hand, the legislature has become involved in the areas of comparative and contributory negligence.
Id. Similarly, in the present case legislative involvement is present in section 613.15 and Iowa R.Civ.P. 8.
A second reason for concluding that we should not seek the change requested is that there does not seem to be the general agreement of the need for a change that existed at the time of Boyer . In that case the desirability of such change was not even questioned, only the means of accomplishing it divided the court. Comparative negligence, on the other hand, has not been welcomed with the same unanimity, and although the current trend is toward its adoption, there is still resistance to the doctrine among some courts.
Stewart, 278 N.W.2d at 295 . Only two states have extended an independent cause of action to children for recovery of loss of parental society due to injury of a parent. We should not change the law of this state when there is so little agreement that change is necessary. See Duhan v. Milanowski, 75 Misc.2d 1078, 1082 , 348 N.Y.S.2d 696, 701 (1973).
The majority recognizes the complexity and uncertainty of their solution to this matter. Nevertheless, they have embraced a legal theory that has received only scant approval elsewhere. I must continue to adhere to our position in Stewart: “Whether Iowa should adopt the theory is basically one of policy, which would be better handled through the legislative process, if pos *275 sible, with all of its means available for input into that decision.” 278 N.W.2d at 296 . Therefore, I would decline to extend an independent cause of action to children to recover for the loss of society and companionship of a parent who has been tor-tiously injured by a third party.
SCHULTZ, J., joins this dissent.