Murphy v. The Chicago, Milwaukee and St. Paul Railway Company

• Decision Date: 10 May 1890
• Citation: 45 N.W. 392,80 Iowa 26
• Parties: MURPHY v. THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY
• Court: Iowa Supreme Court

45 N.W. 392

80 Iowa 26

MURPHY v. THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

May 10, 1890

Decided May, 1890.

Appeal from Scott District Court.--HON. A. HOWAT, Judge.

ACTION to recover for personal injuries sustained by plaintiff's intestate. A demurrer to the petition was sustained, and plaintiff refusing to further plead, judgment was rendered in favor of defendant for costs. The plaintiff appeals.

AFFIRMED.

Murphy & Gould and D. B. Nash, for appellant.

Wm. K White, for appellee.

OPINION

ROBINSON, J.

The petition shows that on the twenty-seventh day of January, 1887, plaintiff's intestate, one John Cunningham, was a minor of the age of about eighteen years; that on the date named, while discharging his duties as an employe of defendant, he received injuries in consequence of negligence and the want of proper care and management on the part of defendant, which caused his death about two hours after the injuries were received; that plaintiff was duly appointed administrator of the estate of the deceased on the sixth day of March, 1889. Other averments of the petition need not be considered. This action was commenced on the fifteenth day of April, 1889. The ground of the demurrer to the petition is stated as follows: "The petition on the face thereof shows that the claim is barred by the statute of limitations, in this: That said action was not brought within two years from the alleged wrongful act."

Section 2529 of the Code provides that actions founded on injuries to the person may be brought within two years "after their causes accrue, and not afterwards, except when otherwise specially declared." Section 2535 provides that the time limited for such actions "shall, in favor of minors, as defined by this Code, and persons insane, be extended so that they shall have one year from and after the termination of such disability within which to commence said actions." Appellant contends that, as the deceased was a minor, resting under disability to maintain an action in his own name, at the time of the injury, and so continued until his death, he did not become vested with a complete right of action during his lifetime; that the statute of limitations will not begin to run until there is a person who has the legal capacity to sue and be sued; that the imperfect right of action of the deceased survived to his estate, and was perfected by the appointment of the administrator; that the operation of the two-years limitation of section 2529 to which we have referred was suspended by the provisions of section 2535. Numerous authorities are cited in support of these claims but, in our opinion, few, if any of them, are in point, for the reason that the determination of the question involved depends almost wholly upon the statutes of our own state. It has been held that the right of action for a wrong which results in death vests in the person injured if he survive the injury but for a single moment. Kellow v. Railway Co., 68 Iowa 470, 480, 484. "All causes of action shall...