Pagitt v. City of Keokuk

206 N.W.2d 700, 1973 Iowa Sup. LEXIS 1002
CourtSupreme Court of Iowa
DecidedApril 25, 1973
Docket55551
StatusPublished
Cited by24 cases

This text of 206 N.W.2d 700 (Pagitt v. City of Keokuk) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pagitt v. City of Keokuk, 206 N.W.2d 700, 1973 Iowa Sup. LEXIS 1002 (iowa 1973).

Opinions

LeGRAND, Justice.

These cases involving the tragic deaths of two young boys, sons of Noel J. Pagitt and Mary Jo Pagitt, are here for the second time. An earlier interlocutory appeal settled — or so we thought — a parent’s right to recover for loss of companionship and society in an action for the wrongful death of his minor children. See Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971). On the subsequent trial of the case, a jury found the city’s negligence had caused Randall Lee Pagitt and Steven Craig Pagitt to be swept into a storm sewer. Death by drowning resulted. The estate of each deceased minor was awarded $20,000.00 and the father received $30,-000.00 for loss of services of each of his sons. We affirm the trial court.

Two errors are said to justify a reversal. They are: (1) the trial court erred in giving instruction 16 dealing with the measure of damages; and (2) the city is entitled to a remittitur or, in the alternative, a new trial because all four verdicts are excessive.

I. We discuss first the claim of error in giving the damage instruction. After instructing on the elements necessary to find liability, the trial court charged the jury on damages in the event they found plaintiff entitled to recover. We set out the important part of that instruction:

“The loss of services for each child includes the reasonable value of the loss of companionship and society of each child from the date of his death, July 7, 1969, until he reached his majority.
[702]*702“In this connection, you are further instructed that the damages for loss of services, if any, must be diminished by the probable cost of each child’s support and maintenance from the date of the death of each child until each child would have reached his majority.
“You are further instructed that in your consideration of damages for loss of services, if any you find, you are to give no consideration for grief, mental anguish or suffering to the Plaintiff by reason of the childrens’ death.
“In connection with the claim of the Plaintiff for the loss of services of Randall Lee Pagitt and Steven Craig Pagitt, or one of them, if any you find, you are instructed that the services of a son in the form of companionship and society to his father cannot be measured with precision but you may take into consideration the circumstances of life of Randall Lee Pagitt and Steven Craig Pagitt, as disclosed by the testimony, including his age, health and strength, his activities in the household and community, and any other competent evidence which may have a bearing upon the claim of the Plaintiff for the loss of companionship and society, allowing therefor such amount as to you may appear to be fair and reasonable under the circumstances.
“You should add together the amounts, if any, you find Plaintiff, Noel J. Pagitt, individually and as father of Randall Lee Pagitt, is entitled to recover on each of the items claimed, and such total will be the amount of your verdict, but in no event can such recovery exceed $150,-000.00, being the amount claimed therefor.
“You should add together the amounts, if any, you find Plaintiff, Noel J. Pagitt, individually and as father of Steven Craig Pagitt, is entitled to recover on each of the items claimed, and such total will be the amount of your verdict, but in no event can such recovery exceed $150,000.00, being the amount claimed therefor.”

The city made the following timely objection to the instruction:

“[The last two] paragraphs instruct [the jury] repetitively and at the same time do not consider the diminution for the probable cost of child support and maintenance from the date of death to when [each child] reaches his majority, although that is set forth on the first page of the instruction. In other words, we believe if this instruction is permitted to stand you should add, to the amount, if any, you find for Noel J. Pagitt, individually and as father of Randall Lee Pagitt, is entitled to recover on each of the items claimed, and deduct the reasonable cost of maintenance and support of said child from the time of his death until the time he reaches his majority.
“That same insert should be made in the next paragraph with respect to Steven Craig Pagitt.
“We further object to [that portion] of Instruction number 16, [which is erroneous] because the age, health and strength of the child are not relevant [to a determination of damages for loss of companionship and society] nor [are] his activities in the community relevant.”

The objection is twofold. The first complaint rests upon the asserted failure of the trial court to adequately instruct the jury any award for loss of services, which we said in Wardlow include companionship and society, must be diminished by the probable and reasonable cost of the support and maintenance of the children from the date of their death to the time they would have attained their majority.

The city concedes this limitation appears in the instruction but insists it is misplaced. We are told it should have been put (or repeated) at the end of the instruction, when the jury was charged on the mechan[703]*703ics of reaching the amounts to be allowed as damages.

We find no merit in this objection. The instruction under attack was the only one dealing with damages for loss of services. All elements to be considered were included there. The jury was clearly told to reduce any award for loss of services by the “probable cost of each child’s support and maintenance” from the date of his death to the date he would have reached his majority.

We see no possibility the jury could have tailed to understand this instruction. If the jurors followed the instructions, as we assume they did, the amount for loss of services had already been reduced by the probable expense of support and maintenance before the items of recovery were combined to arrive at the ultimate verdict. The instruction as given is not vulnerable to this objection.

The second ground for objection asserts the trial court erred in letting the jury consider the “age, health and strength, activities in the household and community and any other competent evidence which may have a bearing upon the claim of the plaintiff for the loss of companionship and society” in arriving at the damages for loss of services.

The city’s argument runs this way: While the Wardlow decision established the right of a father (or, in some circumstances, a mother) to recover for loss of society and companionship, it did not point out any guidelines as to what elements could be considered in assessing recovery for that loss. It merely recognized the general principle, leaving the issue otherwise open and unchartered. In giving instruction 16, the trial court set out its own standards, which allowed the impermissible considerations mentioned in the objection to influence the jury’s verdicts. Again, we must disagree with the city.

We cannot accept the argument that the characteristics which bear relationship to companionship and society may not be considered in arriving at the value of the loss sustained.

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Pagitt v. City of Keokuk
206 N.W.2d 700 (Supreme Court of Iowa, 1973)

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Bluebook (online)
206 N.W.2d 700, 1973 Iowa Sup. LEXIS 1002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pagitt-v-city-of-keokuk-iowa-1973.