Major v. Burlington, Cedar Rapids & Northern Railway Co.

• Citation: 88 N.W. 815,115 Iowa 309
• Parties: PEARL MAJOR, Appellant, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY
• Decision Date: 21 January 1902
• Court: United States State Supreme Court of Iowa

88 N.W. 815

115 Iowa 309

PEARL MAJOR, Appellant, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

January 21, 1902

Appeal from Linn District Court.--HON. H. M. REMLEY, Judge.

THE plaintiff is the widow of Benton E. Major, who, as she alleges in her petition, was killed by the wrongful act of defendant, and she thereby deprived of his love, society companionship, support, and maintenance, to her damage in the sum of $ 10,000, for which she asks judgment. The defendant's demurrer--in effect, that plaintiff could not maintain the action--was sustained. As she failed to amend her petition was dismissed, and she appeals.

Affirmed.

Preston & Moffit and P. W. Tourtellot for appellant.

S. K Tracy for appellee. J. C. Cook, being interested in a like case, was permitted to file a brief.

OPINION

LADD, C. J.

Can a widow maintain an action for damages resulting to her individually from the wrongful killing of her husband? Were it not for the almost unbroken line of authority to the contrary, little difficulty, we apprehend, would be experienced in vindicating such right, at the common law, upon grounds suggested by many eminent jurists. See Sullivan v. Railroad Co., 3 Dill. 334 (Fed. Cas. No. 13,599); Opinion of Bramwell, B., in Osborn v. Gillet, L. R. 8 Exch. 93, sustained by an article by F. T. Fox in 12 Central Law Journal 464; James v. Christy, 18 Mo. 162; Cross v. Guthery, 2 Root 90 (1 Am. Dec. 61); Ford v. Monroe, 20 Wend. 210; Plummer v. Webb, 1 Ware 69, 19 F. Cas. 894 (Fed. Cas. No. 11,234). Nearly every decision attempting to accomplish this, however, has met the peculiar misfortune of being overruled. Thus the well-reasoned opinion of Judge Dillon in Sullivan v. Railroad Co., supra, was overturned in 1 McCrary 301 (2 F. 447), following Mobile Life Ins. Co. v. Brame, 95 U.S. 754 (24 L.Ed. 580), wherein such liability was expressly denied. The right to maintain the action appears to have been assumed, rather than decided, in Ford v. Monroe and Cross v. Guthery, and was subsequently denied in the same state, on full consideration, in Green v. Railroad Co., 41 N.Y. 294, and Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265 (65 Am. Dec. 571). In the last case the court said: "Should damages be demanded in right of the deceased for the injury to him, in the name of his representative, a right would clearly be claimed by the mere representative, which, from the nature of things, could never have inhered in the principal for one instant of time. No contract, even, could be made recognizing such a right, and providing for a compensation for the loss of one's life. The contract of insurance upon lives was tolerated, not on the ground that death was a proper subject of pecuniary remuneration, but as a mere wager, which might, if lawful, as all wagers once were, depend as well upon the duration of life as upon any other contingency. Or if a suit should be brought to recover for the mental suffering, loss of society, comfort, support, and protection resulting from the death of another person, we should see at once--so intertwined is the web of human interest, and relationship--that the author of this, however slight or accidental his default, would be responsible in numberless actions brought on behalf of wives, children, friends, brothers, sisters, and dependents of all degrees, to say nothing for the present of creditors; and for any injury of such incalculable extent writers on jurisprudence, perhaps without strict accuracy, have assigned the awful magnitude of the wrong as the reason why neither court nor jury have ever be trusted by the law with the function of estimating it." In Osborn v. Gillet, supra, notwithstanding the able argument of Bramwell, B., in which he pointed out that Baker v. Bolton, 1 Camp. 493,--the case generally relied on,--was only a nisi prius decision of Lord Ellenborough, the majority of the court held the action might not be maintained, stating that not in a single instance within the books or memory of man had such a liability been recognized in England. In some of the above cases stress is laid on the allowance of such a right in the civil law, but it is to be noted that this has been repeatedly denied, after exhaustive investigation, by the only tribunal administering the civil law in this country. Hubgh v. Railway Co., 6 La.Ann. 495 (54 Am. Dec. 565); Hermann v. Railway Co., 11 La.Ann. 5. Nor can such action be maintained in admiralty. The Harrisburg, 119 U.S. 199 (7 S.Ct. 140, 30 L.Ed. 358). This court declared in the early case of Donaldson v. Railroad Co., 18 Iowa 280, that "at common law no right of action for the recovery of damages existed against one who had caused the death of another." This was conceded to have been the rule in Conners v. Railway Co., 71 Iowa 490, where it was said to have been based on two grounds: "That the right of civil remedy, when the wrongful act amounts to a felony, is merged in the public offense; and (2) that, the injury to the person being a personal tort, the right of action determines with his death." The authorities are so uniform and numerous in denying the common-law liability for the instantaneous death of a human being, that, as was remarked in Brame's Case, "It is impossible to speak of it as a proposition open to question." The decisions will be found collected in 8 Am. & Eng. Enc. Law, 855, and note to Carey v. Railroad Co., 48 Am. Dec. 616. This point was definitely decided in Hyde v. Railway Co., 61 Iowa 441, but, even were the question res integra in this court, we should feel constrained to yield to the overwhelming weight of authority denying the right to have existed.

II. It is insisted, however, that the statutes of Iowa have completely abrogated the common law rule; and it was so said in Conners v. Railway Co., 71 Iowa 490. Section 3443 of the Code reads: "All causes of action...