Boyce v. Wabash Ry. Co.

• Decision Date: 19 March 1884
• Citation: 63 Iowa 70,18 N.W. 673
• Parties: BOYCE v. WABASH RY. CO.
• Court: Iowa Supreme Court

63 Iowa 70

18 N.W. 673

BOYCE

v.WABASH RY. CO.

Supreme Court of Iowa.

Filed March 19, 1884.

Appeal from Lee district court.

The plaintiff is a resident of the state of Illinois, and brought this action under a statute of that state to recover double the value of a mule, the property of the plaintiff, killed by the defendant in said state. There was a denial of the allegations of the petition, and affirmative defenses pleaded by the defendant. Trial to the court, finding of facts, and judgment for the defendant, and plaintiff appealed, and afterwards the defendant appealed.Hagerman, McCrary & Hagerman, for appellant.

Anderson Bros. & Davis, for appellee.

SEEVERS, J.

1. The court found that the defendant killed a mule in the state of Illinois, which was the property of the plaintiff, under such circumstances as will entitle the plaintiff to recover double its value under a statute of that state. As a conclusion of law, the court held that as the action was based on a statute of Illinois it had no jurisdiction of the subject-matter, and rendered judgment for the defendant; to which the plaintiff excepted. Counsel for the appellee insists that such a general exception is insufficient, and should therefore be disregarded. In support of this position, many cases are cited, which in substance hold, where the charge of the court contains several propositions of law, that a general exception to the whole charge is not sufficiently definite and certain. But it has never been held that an exception to a single instruction or legal proposition, if taken at the time, was insufficient. On the contrary, it has been repeatedly held that an exception to each instruction, if taken at the time the charge was given, was not too general. This is equivalent to holding that if there is but a single legal proposition stated in the charge, an exception thereto, if taken at the time it was given, would be sufficient and could not be disregarded. In effect this is precisely what the appellant did. There was but a single conclusion of law, and to this the plaintiff excepted. We think he did all he was required to do.

2. This brings us to a consideration of the merits of the plaintiff's appeal. The question to be determined we understand to be whether there can be a recovery under the statutes of Illinois in the courts of this state. As there is a similar statute in this state, it can be properly said that the policy is the same in both states. If a recovery is allowed, the public policy of this state will not be in any manner infringed. This is not an attempt to give extraterritorial force to a statute of this state, or to recover under a statute thereof for the invasion of a right or the infliction of a wrong in some other state or county. This case is therefore distinguishable from Whitford v. Panama R. Co. 23 N. Y. 465, and Hyde v. Wabash R. Co. 16 N. W. REP. 351. If this cause of action existed at common law, we apprehend a suit could be maintained and a recovery had in this state. In Smith v. Bull, 17 Wend. 323, it was held that an action for assault and battery committed in Pennsylvania could be maintained in New York. It cannot be a subject of dispute that personal actions, whether based on contracts or torts, are under the common law transitory. In this and several other states there are statutes providing in substance, where a wrongful act causes death, that a right of action survives to the administrator or next of kin of the deceased. Under these statutes it has been determined in two recent and well-considered cases that an action may be maintained in one state, although the wrongful act which caused the death was committed in another state. Dennick v. Railroad Co. 103 U. S. 11;Leonard v. Columbia Steam Nav. Co. 84 N. Y. 48. These cases are based on the thought tersely expressed by MILLER, J., in the case first cited, as follows: “It is difficult to understand how the nature of the remedy or the jurisdiction of the courts to enforce it is in any manner dependent on the question whether it is a statutory right or common-law right. Whenever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such mattersand can obtain jurisdiction of the parties.” The rule adopted in these cases we deem to be correct, and we are content to follow them without stating our reasons at length; for we could only repeat what has been so well said in the cases above cited.

The following cases are cited as announcing the contrary doctrine: Woodard v. Michigan, etc., R. Co. 10 Ohio St. 121;Richardson v. N. Y. C. R. Co. 98 Mass. 85; and McCarthy v. C., R. I. & P. R. Co. 18 Kan. 46. We regard it as doubtful whether either of these cases, fairly considered, determine the question whether the action, if brought by the proper person, cannot be maintained.

3. It is insisted that the statute in question is in the nature of a police regulation, and therefore no recovery can be had in this state, because our courts are not open for the enforcement of such regulations. It is claimed this was determined in State of Indiana v. Helmer, 21 Iowa, 370. That was an action on a judgment obtained in Indiana in a bastardy proceeding. The question in the case was whether the action could be maintained, and it was held it could, because the original cause of action had become merged in the judgment, and it was the latter only on which a recovery was asked. But it was, in substance, said, by way of argument, that the original action could not have been maintained in the courts of this state. For the purposes of the case at bar this will be conceded, and it may with...