Hyde v. Wabash, St. Louis & Pacific R'Y Co.

Decision Date16 June 1883
Citation16 N.W. 351,61 Iowa 441
CourtIowa Supreme Court

Appeal from Mills Circuit Court.

ACTION for a personal injury. The plaintiff alleges in his petition in substance, that he is the administrator of the estate of J. W. Hyde, deceased; that the defendant is engaged in the business of a common carrier, and as such is running its trains from Malvern, Mills county, Iowa, to some point in the state of Missouri; that in November, 1879, the defendant received from one Wearen certain live stock at its station at Malvern for transportation; that the plaintiff's intestate was engaged in aiding said Wearen in the transportation of said stock, and in taking the proper care and management thereof; that the defendant, in consideration of the benefits to be derived from the contract entered into between it and Wearen for the transportation of the stock authorized the plaintiff's intestate to take passage on the same train on which the stock was being conveyed; that the defendant so carelessly ran its said train while crossing a bridge over the Missouri River at St. Charles, Missouri that a portion of the train was thrown from the track, and the plaintiff's intestate was instantly killed.

To the petition so averring, in substance, the defendant demurred upon the ground that "the petition shows that the death of said J. W. Hyde occurred in the state of Missouri, and fails to show that, under the laws of Missouri, the plaintiff is entitled to maintain an action on account of said death." The court sustained the demurrer, and, the plaintiff electing to stand upon his petition, the court entered judgment against him for costs, and he now appeals.


J. H. Keatly and Hale, Stone & Proudfit, for appellant.

H. H. Trimble & Son, and D. H. Soloman, for appellee.



At common law no action can be maintained for an injury resulting in death. Baker v. Bolton, 1 Camp. 493; Carey v. Berkshire R. R. Co., 55 Mass. 475, 1 Cush. 475.; Palfrey v. Portland, Saco & Portsmouth R. R. Co., 86 Mass. 55, 4 Allen 55. The injury in this case resulting in death, no action can be maintained for it, unless by reason of a statute. So far, we presume, there is no controversy.

The plaintiff does not aver that there is any statute of Missouri giving him a right of action, and we presume that he does not rely upon such statute. He shows, indeed, by his argument that he relies upon a statute of Iowa. The question presented, then, is as to whether the action can be maintained under the statute of Iowa.

The statute which we understand the plaintiff to rely upon is section 2525 of the Code, and is in these words: "All causes of action shall survive, and may be brought notwithstanding the death of the person entitled to or liable for the same." The plaintiff contends that the question as to whether an action survives pertains to the remedy, and must be governed by the law of the place of the court. He contends, therefore, that it is immaterial where the action arose; that, wherever it arose, the words of the statute are broad enough to cover it, and that, if the court had construed them according to their plain import, it would have been so held.

But, in our opinion, there is a question involved deeper than one pertaining merely to the remedy. Where a cause of action does not survive, it is to be treated the same as if it never arose. The cause of action in this case arose, if anywhere, in Missouri, but, if it did not survive in Missouri, and if the courts of that state would treat it as if it never arose, we think it would be improper for the courts of this state to treat it as if it did. An act which, done in Missouri, does not create a liability in that state, would not create a liability anywhere.

Again if the cause of action survives, it must...

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