Basham v. Chi. & G. W. Ry. Co.

• Court: Iowa Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Basham v. Chi. & G. W. Ry. Co., 178 Iowa 998, 157 N.W. 192 (Iowa 1916)
• Decision Date: 07 April 1916
• Docket Number: No. 30018.,30018.
• Parties: BASHAM v. CHICAGO & G. W. RY. CO.

178 Iowa 998

157 N.W. 192

BASHAM

v.CHICAGO & G. W. RY. CO.

No. 30018.

Supreme Court of Iowa.

April 7, 1916.

Appeal from District Court, Polk County; C. A. Dudley, Judge.

PER CURIAM.

The opinion originally filed in this case is found in 154 N. W. 1019. A petition for rehearing has been filed, which is largely directed to the third paragraph of that opinion. Owing, doubtless, to our failure to express our views at that time with proper precision and clearness, counsel have wholly misapprehended the thought we intended to express; and, in order to remove any doubt thereon, we withdraw the entire paragraph, and, omitting all reference to technical questions of pleading and practice, substitute a new paragraph dealing directly and solely with the point made by defendant that the cause of action stated by the amended petition is barred by the statute of limitations.

The deceased was injured March 27, 1910. The original petition was filed April 11, 1911. It described the defendant company as operating a line of railroad through the states of Iowa, Illinois, Minnesota, Missouri, and Kansas, and alleged that deceased was injured while in charge of an engine hauling a regular passenger train between Des Moines and Oelwein, and demanded a recovery of damages. To this defendant demurred on the ground that the petition showed deceased to have been engaged in interstate commerce, and no action for the recovery of damages would lie under the laws of Iowa. It was also objected that no right of action survived the death of the intestate. The demurrer being overruled, defendant answered in denial, and pleaded contributory negligence on the part of deceased. On October 13, 1913, more than two years after the death, plaintiff amended the petition by adding an allegation that deceased left a dependent wife who suffered pecuniary injury by his death, and that the action was being prosecuted for her benefit. Thereupon the defendant in a motion to strike raised the objection that the amended petition stated an entirely new cause of action and was barred. The motion was overruled, and defendant answered, denying the amended petition, and pleading the statute of limitations. The facts bearing upon the issue so tendered are wholly without dispute, and, passing all merely collateral questions, we come at once to the inquiry whether this defense is available to the appellant.

3. We are of the opinion that the statute of limitations affords no defense in this case. The suit was originally brought and has ever since been maintained by the administrator, who is the proper person to prosecute it, whether it be maintainable under the law of the state or under the federal Employers' Liability Act. The cause of action in either case is the death of Spellman, occasioned by the alleged negligence of the defendant. In other words, whether the action be brought in one form or the other, it is by the same party, against the same party, in the same court, for damages for the same alleged wrong; the sole distinction being in the measure of damages to be recovered and the person or beneficiary to whom the plaintiff must account for the damages, if any, which he collects. Now, assuming that plaintiff seeks to recover under the statute of the state and alleges a good cause of action, but before the case is brought to trial, or even pending the trial, it develops that the deceased was injured while engaged in interstate commerce, and that, to sustain a verdict in favor of the administrator, the petition should allege that he was survived by a dependent wife or family, an amendment to the petition adding such necessary averment does not, in the judgment of the court, state a new cause of action permitting the defendant to successfully interpose a plea of the statute of limitations. Such is the logical and necessary effect of our own holdings. Cahill v. Railroad Co., 137 Iowa, 577, 115 N. W. 216;Benson v. Ottumwa, 143 Iowa, 349, 121 N. W. 1065;Kuhns v. Railroad Co., 76 Iowa, 68, 40 N. W. 92;Myers v. Railroad Co., 152 Iowa, 330, 131 N. W. 770;Knight v. Railway Co., 160 Iowa, 166, 140 N. W. 839;Padden v. Clark, 124 Iowa, 96, 99 N. W. 152. In the Cahill Case and in many other cases it has been held that, although a petition in a personal injury action is demurrable because of failure to make some material averment, it may be amended even after the period of limitations has expired between the commencement of the action and the filing of the amendment. See, also, Myers v. Kirt, 68 Iowa, 124, 26 N. W. 22;Bacon v. Railroad Co., 157 Iowa, 501, 137 N. W. 1011. In the Benson Case the plaintiff, a minor, sought to recover damages resulting to himself for personal injuries. Later, and after the expiration of the period in which the statute permitted such actions to be brought without previous notice to the city, he filed amendments increasing his claim among which was a claim for damages sustained by the father by loss of plaintiff's services; the same having been assigned to him by the parent. It was held that the statutory limitation did not apply, this court there saying that, the tort suffered by the son having resulted in loss of earnings to which the parent would have been entitled, the negligence on which the action was predicated was nevertheless negligence in reference to the minor, and “the question as to the person entitled to have compensation for such injury was merely incidental.” Directly in point also seems to be the case of Knight v. Railway Co., 160 Iowa, 160, 140 N. W. 839. There an action was brought to recover for the death of an intestate who was killed in Illinois, where the right of recovery, if any, was for the benefit of the dependent wife and children. The administrator brought action in this state, claiming damages generally for the estate, without alleging the existence of dependent relatives entitled thereto. He was allowed to amend his petition even after verdict by adding thereto the necessary omitted averments without exposing the claim of the defense of the statute of limitations. It was there distinctly held that the statute of limitations was arrested or tolled by the beginning of the action, even though the petition as originally filed may have been demurrable. In this connection the court says:

“The identity of the cause of action is not made to depend upon perfection of allegation, nor is the identity changed by the filing of a mere amendment. Though the petition be demurrable, that fact does not life the toll of the statute.”

It is true that this rule does not seem to be recognized in a few jurisdictions, but it has the support of the weight of...