Lipovac v. Iowa Ry. & Light Co.
| Decision Date | 26 October 1926 |
| Docket Number | No. 37554.,37554. |
| Citation | 210 N.W. 573,202 Iowa 517 |
| Court | Iowa Supreme Court |
| Parties | LIPOVAC v. IOWA RY. & LIGHT CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Dallas County; J. H. Applegate, Judge.
Action by a father to recover damages for the loss of services of his minor child, aged 13, who was killed by coming in contact with a high-tension electric wire belonging to the defendant. There was a verdict for the plaintiff, and the defendant appeals. Reversed.Harry Wifvat, of Perry, and C. Woodbridge, of Des Moines, for appellant.
White & Clarke, of Adel, for appellee.
The appellant is engaged in the business of transmitting electric current for distribution to its customers at various places in the state of Iowa. It maintained an electric line carrying 33,000 volts of electricity between the cities of Boone and Perry. On the morning of June 15, 1924, trouble was discovered on said line near the town of Woodward. Employés of the appellant discovered a high-line pole that had broken off at the surface of the ground and had leaned inside the fence into an adjacent cornfield. The high-tension wires were intact on the pole and were not grounded. They were about 25 or 30 feet from the fence line. The employés of the appellant left the pole and wires in the same situation in which they found them, without guards or notice, and returned to Woodward. They were gone for a space of from 15 to 25 minutes. While they were gone, the son of appellee, who was 13 years of age, came in contact with the wire at or near said pole and received injuries from which he shortly thereafter died. This action is brought by the father of said boy; negligence being predicated upon the failure to keep the poles on which said high-tension wires were placed in proper condition, and negligence being also predicated on the failure to provide signals or proper warning to persons after the appellant's employés knew of the dangerous condition of said pole. The answer was a general denial. It is admitted by appellant that the boy came to his death by coming in contact with the high-tension line of the defendant company.
Code, § 8323, provides:
“In case of injury to any person or property by any such transmission line, negligence will be presumed on the part of the person or corporation operating said line in causing said injury.”
[1] There was sufficient evidence to carry the case to the jury upon the question of the defendant's negligence, and the court did not err in submitting the various grounds of negligence to the jury.
[2] II. It is appellant's contention that appellee was not entitled to recover because, at the time of the injury, the boy was a trespasser upon the land of the owner of the cornfield where he was injured. There is no merit in this contention of the appellant. The fact that the dangerous instrumentality was located upon the land of a third person, and that the injured boy may have been a trespasser upon the land of said third person, is not available as a defense to the appellant. Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S. W. 233.
[3] III. Appellant's main contention and one ground of its motion for a directed verdict is that the appellee had emancipated his boy and was not entitled to recover, under the statute, even though the appellant was negligent. This is the important and vital question in the case. At common law no action will lie to recover damages for the wrongful death of a human being. This has been recognized by the courts of last resort in practically every state in the Union. 17 C. J. 1181; Lane v. Steiniger, 174 Iowa, 317, 156 N. W. 375;Seney v. Chicago, Milwaukee & St. Paul Railway Co., 125 Iowa, 290, 101 N. W. 76;Romano v. Capitol City Brick & Pipe Co., 125 Iowa, 591, 101 N. W. 437, 68 L. R. A. 132, 106 Am. St. Rep. 323, 2 Ann. Cas. 678;Major v. Burlington, C. R. & N. Ry. Co., 115 Iowa, 309, 88 N. W. 815;Sachs v. Sioux City, 109 Iowa, 224, 80 N. W. 336; Lord Campbell's Act was passed in 1846, and since that time a right of action for death by wrongful act has been given by statute in the various states.
[4] The right of recovery being wholly statutory, an action to recover for death by wrongful act must stand or fall by the terms of the statute. It cannot be extended to cases omitted from its provisions or applied to those not fairly within its purview. Seney v. Chicago, Milwaukee & St. Paul Railway Co., supra. Code, § 10986, is as follows:
“A father, or, in case of his death or imprisonment or desertion of his family, the mother, may as plaintiff maintain an action for the expenses and actual loss of service resulting from the injury or death of a minor child.”
Appellee could not maintain an action for the death of his minor son, except under the provisions of the statute, and must bring himself within its terms in order to be entitled to recover. At the outset, it is to be observed that the statute provides that a father may maintain an action for the “actual loss of services” resulting from the death of a minor child. It is the contention of the appellant that, under the undisputed record in the case, there was no evidence of any actual loss of services to the father of the decedent, and that appellant's motion for a directed verdict based upon this ground should have been sustained. The theory of appellant is that under the record in the case the appellee, although the father of the deceased, had emancipated said child, so that he suffered no actual loss of services whatever. The appellee was not a witness in the case. A cousin of of the appellee was a witness. He testified that he had known the boy ever since he was born; that he was born in Dallas county, and that his father formerly lived in said county; that he had mostly been a coal miner, and had worked in Dallas county until about 1914 or 1915, when he lost his health and went West. He said:
On cross-examination he testified that the appellee lived somewhere in California; that he was cooking and washing dishes in restaurants for 2 or 3 years before he went to California; that he did this in Davenport, and went from there to California. He went to Davenport from Albia about 1915 or 1916. The boy was placed in the orphans' home about 1916 or 1917, and went to live with his uncle about 4 years ago; that the boy was taken to the orphans' home about the time the father moved from Albia to Davenport, which was about 10 years ago.
The uncle testified that the boy had lived at his house 3 years 9 months and 7 days; that before he came to his place to live he was in the orphans' home at Davenport for 2 years. He testified:
There is a very full and interesting discussion of the question involved in Swift & Co. v. Johnson, 138 F. 867, 71 C. C. A. 619, 1 L. R. A. (N. S.) 1161, decided by the Circuit Court of Appeals of this circuit, and in which the opinion was written by Mr. Justice Van Devanter. The case arose under the statute of Minnesota, which provides that the right of action is given to the widow and next of kin of the decedent. In that case the father was the next of kin, and the question arose whether or not, under the statute, the father was entitled to recover. The court met squarely the question:
“Did the evidence conclusively establish that the father had lost his legal right to the services and earnings of the son during his minority?”
The court said:
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