McBride v. Burlington, C.R. & N.R. Co.

• Decision Date: 29 January 1896
• Citation: 66 N.W. 73,97 Iowa 91
• Parties: MARY MCBRIDE, Administratrix, Appellant, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY
• Court: Iowa Supreme Court

66 N.W. 73

97 Iowa 91

MARY MCBRIDE, Administratrix, Appellant, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

January 29, 1896

Appeal from Linn District Court.--HON. WILLIAM G. THOMPSON, Judge.

ACTION for damages. Demurrer to petition sustained, and plaintiff appeals.

Affirmed.

Rickel Crocker & Christie for appellant.

S. K Tracy and J. C. Leonard for appellee.

OPINION

KINNE, J.

I.

This action is brought by plaintiff, as administratrix of the estate of John McBride, deceased, for the recovery of damages resulting from his death, which it is claimed was caused by the negligence of the defendant company. The petition is in four counts. The first count charges, in substance, that on August 14, 1888, plaintiff's intestate, John McBride, who was also her husband, was in the employ of the defendant company as a section hand, and that, while engaged in the proper performance of his duties as such, he, with other employes of the defendant company, was propelling a hand car of defendant upon its track, and that said car "jumped" the track, and in falling said McBride was killed, by reason of the derailment of said car, and without fault on his part. That said car was not properly constructed, that it was out of repair and unfit for use, and that such condition was known to the defendant. That, by reason of its defective and dangerous condition, the injury resulted. That, intending to cheat and defraud plaintiff, and the heirs of said estate, defendant falsely and fraudulently represented to plaintiff that the death of John McBride resulted from an accident; that defendant was in no manner to blame; that said car was not defective or out of repair. That upon said McBride's death, defendant caused said car to be removed to its shops, and its construction and identity to be so changed as to conceal the same. That plaintiff has been unable, by the exercise of due diligence, to acquire a knowledge of the facts; but the same have been concealed actively and fraudulently, from her; nor did she learn them until within one year prior to the bringing of this action. That she believed and relied upon the representations made to her, and was deceived thereby. The second count is substantially the same as the first. The third count sets forth the same facts, and claims damages, by reason of said fraud and deceit, in being deprived of her right of action. The fourth count is the same as the first, with the additional averment that, by reason of false and fraudulent representations of defendant, which were relied upon by plaintiff, she was induced to accept the sum of two hundred and fifty dollars in settlement of her claim for the death of her husband. Defendant demurred to all of said counts, because the cause of action, if any, was barred by the statute of limitations, and the averments of fraud did not defeat the bar of the statute. The court sustained the demurrer, and, the plaintiff refusing to plead further, and electing to stand upon her petition, judgment was entered dismissing her petition, and for costs. She appeals.

II. Our statute provides that all actions founded on injuries to the person, whether based upon contract or tort, must be brought within two years after their causes accrue. Code, section 2529, paragraph 1. Unless, therefore, there is something outside of the statute itself, which has prevented its running, this action is barred. The contention of appellant is, that the facts alleged bring this case within the rule laid down by this court in the case of District Township of Boomer v. French, 40 Iowa 601, and subsequent cases. It was held in the case referred to that, "when a party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment, prevented such other from obtaining a knowledge thereof, the statute of limitations would only commence to run from the time the cause of action was discovered, or might by the use of diligence have been discovered." This case, and others which we shall refer to, are, it is insisted, controlling in the case at bar. The French Case was one where the defendant who was the duly-elected and acting treasurer of a school district, had during his term of office received a large sum of money belonging to the district, which he appropriated to his own use, and upon a settlement with the district failed to account for. He had so kept his...