Lewis v. Maddy

Evans, J. -The plaintiff’s husband, while in the employ of the defendant, fell from a scaffold, sustaining injuries. from which he died, one hour later. The action is for damages for the loss of consortium for such space of one hour following the injury. l. death: damages: right ot action. 2' mnovi1- review: extend in gennominai damages. It is the law of this state, as appellant concedes, that damages for wrongful death accrue to the administrator of the decedent. Neither husband nor wife may sue in an individual capacity for the damages resulting from such wrongful death. Major v. Burlington, C. R. & N. R. Co., 115 Iowa 309. Under many of our previous cases, however, it has been held that the husband may recover individually for loss of consortium' and services of the wife, and for expenses incurred in her treatment during the period intervening between the time of the injury and the time of death. Whether the right of action has [605] been superseded to the husband by Section 3477-a, Code Supplemental Supplement, 1915, we shall have no occasion to determine herein. The contention of the appellant is that this right subsists to the husband, and that it ought to subsist to the wife, for the same reason, the right of con-' sortium of the wife being equal to that of the husband. Concededlv, the wife would have no right to recover for loss of the services of her husband. The contention of the plaintiff, then, is reduced to this: that she is entitled to recover for the loss of consortium during the space of one hour intervening between the injury and the death. Without passing upon the legal question thus presented, it is enough to say that the damages for such a brief space of time would necessarily be nominal. We so held in Lane v. Steiniger, 174 Iowa 317, 319, find in Jacobson v. Fullerton, 181 Iowa 1195. We could not, therefore, reverse for the purpose of allowing nominal damages, even though the legal contention of plaintiff were sustained. We shall not, therefore, undertake to pass upon it. 3. Appeal and va«on: 0rfeser' grounds: insufficient presentation. The petition claimed also an item of damages for funeral expenses. This item is not pressed in argument, nor presented in the brief of appellant. We have no occasion, therefore, to consider that. The judgment below must, therefore, be — Affirmed. Ladd, C. 3., Preston and Salinger, JJ., concur.