Jensen v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 11 December 1924
• Docket Number: 36305
• Citation: 201 N.W. 34,198 Iowa 1267
• Parties: MARIE JENSEN et al., Appellees, v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

201 N.W. 34

198 Iowa 1267

MARIE JENSEN et al., Appellees, v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY, Appellant

No. 36305

Supreme Court of Iowa, Des Moines

December 11, 1924

Appeal from Cerro Gordo District Court.--M. H. KEPLER, Judge.

ACTION at law for damages for the alleged wrongful death of Theodore Jensen, who was killed in a collision at a railway crossing and as a result of the alleged negligence of the defendant and its employees. The defense was a general denial and a plea of the statute of limitations. The petition being amended, the defendant withdrew its answer, and filed a demurrer, predicated upon the statute of limitations. This demurrer was overruled. The defendant, electing to stand thereon, suffered judgment, and appeals.

Affirmed.

Hughes Taylor & O'Brien, for appellant.

Ira W Jones and Henry Curvo, for appellees.

EVANS, J. ARTHUR, C. J., and PRESTON, STEVENS, FAVILLE, and VERMILION, JJ., concur.

OPINION

EVANS, J.

This action was brought in the first instance by Marie Jensen, the widow of the decedent Theodore Jensen. In her petition she set forth the alleged circumstances of the accident which resulted in the death of her husband, and alleged specific negligences of the defendant as the cause of the accident. She prayed judgment for $ 25,000, which amount was later reduced by amendment to $ 2,999. She predicated her right of recovery of damages on the ground that she and her three children had been deprived of the support furnished by the decedent in his lifetime. It appears from the petition that the accident happened on July 23, 1920. The action was begun on October 26, 1921. On March 31, 1923, this plaintiff presented, and obtained leave to file, an amendment to her petition, whereby H. E. Palmeter, as administrator of Theodore Jensen, joined with her in the petition, and adopted all the allegations thereof. The prayer of such amendment was that the administrator, Palmeter, have judgment for the damages claimed. On September 10, 1923, the defendant assailed the amendment with a motion to strike the same and to strike the name of Palmeter, administrator, therefrom; and assailed it also by demurrer. The grounds of both motion and demurrer were that Palmeter, administrator, had no interest in the action brought by Marie Jensen, and was not a necessary party thereto; that Palmeter, administrator, could not maintain the action on his own account, because he had served no notice and had brought no action, and because the statute of limitations had fully run before the purported amendment had been filed. The demurrer was also directed against the original petition filed by Marie Jensen, on the ground that she had no legal capacity to sue, and that the facts set out by her did not entitle her to the relief demanded. Manifestly, the petition of Marie Jensen did not state a legal cause of action in her favor, and was, therefore, demurrable. The defendant saw fit, however, not to demur until after the amendment was filed. We have, therefore, now to deal with the pleading as amended. The argument for appellant is, naturally, that the administrator had no interest in the recovery claimed by Marie Jensen in her original petition; that the cause of action upon which he may recover is not the same as that pleaded by Marie Jensen; that he cannot by amendment bring into the case of Marie Jensen a new or different cause of action which had accrued to him alone, and not to Marie Jensen.

If the proposition were an open one in this state, the argument is not without logical plausibility. But the door of argument has long been closed on this question. The case is squarely ruled by Myers v. Chicago, B. & Q. R. Co., 152 Iowa 330, 331, 131 N.W. 770. That case has been repeatedly reaffirmed. Some of the subsequent cases are Knight v Moline, E. M. & W. R. Co., 160 Iowa 160, 140 N.W. 839; Lane v. Steiniger, 174 Iowa 317, 156 N.W. 375; Van Dyk v. Mosterdt, 171 Iowa 3, 153 N.W. 206. See, also, Basham v. Chicago G. W. R. Co., 178 Iowa 998, 157 N.W. 192, 154 N.W. 1019. Appellant assumes to rely upon Gardner v. Beck, 195 Iowa 62, 189 N.W. 962, as authority for its contention. We find no support for the appellant in the cited case. The distinction between the holding in the Gardner case and that in the Myers case is fully set forth in the opinion in the Gardner case. See division IV thereof, pages 71, 72. The authority of the Myers case is distinctly recognized therein. It is needless herein that were repeat the distinction pointed out in that opinion. We are not unmindful that the courts of the several states are not united on the question here involved, and that plausible argument is...