Rudiger v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 13 October 1896
• Parties: RUDIGER v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

94 Wis. 191

68 N.W. 661

RUDIGER

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Oct. 13, 1896.

Appeal from circuit court, Dunn county; E. B. Bundy, Judge.

Action by Bernardina Rudiger, administratrix of the estate of Leopold Rudiger, deceased, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, to recover damages for the death of plaintiff's intestate. A demurrer to the complaint having been overruled, defendant appeals. Affirmed.

The plaintiff brought this action in her representative capacity as administratrix of the estate of her deceased husband, Leopold Rudiger, to recover damages sustained by his death, occurring at St. Paul, Minn., but which was caused by the wrongful, careless, and negligent acts and omissions of the defendant, occurring upon the line of its railway, between Roberts and Hammond, in Wisconsin, and while he was there a passenger on its train of cars. A demurrer to the plaintiff's complaint upon the ground that it did not state facts sufficient to constitute a cause of action was overruled, and the defendant appealed from the order. The only question presented is whether a death occurring outside this state, but resulting from wrongful and negligent acts within the state, is embraced within the statute (section 4255, Sanb. & B. Ann. St).L. K. Luse, for appellant.

J. R. Mathews, C. T. Bundy, and T. F. Frawley, for respondent.

PINNEY, J. (after stating the facts).

Section 4255, Sanb. & B. Ann. St., provides that: “Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state, and in some court established by the constitution and laws of the same.” No action would lie by the common law for wrongfully causing the death of a human being, although the wrongful act might, under some circumstances, give a right of action to others, arising out of some relation existing between the deceased and the party suing. In such cases the right of action cannot spring from the death itself, but from the effect of the neglect or wrongful act upon rights growing out of such relations. For any personal injury inflicted on one in his lifetime the right of action therefor at the common law was extinguished by his death. Cooley, Torts, § 262, and cases cited. In Whitford v. Railroad Co., 23 N. Y. 470, it was said that the authorities “settled the question that, where injuries are inflicted causing the death of a person, the right of action for such injuries dies with the person upon whom they are inflicted. The exceptions are that a husband may maintain a civil action for injury to the wife, so far as medical services and funeral expenses were incurred, or a parent for the loss of a child's services up to the time of its death; but not for the loss of life.” In Hollenbeck v. Railroad Co., 9 Cush. 480,--an action under a statute providing for the survival of actions of trespass on the case for damages to the person, and that, “in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator, in the same manner as if he were alive,” in effect like the statute of this state (sections 2803, 4253) on the subject of survival of actions,--Shaw, C. J., says: “It is perfectly well settled as a rule of common law that all rights of action for injury to the person die with the person, and it follows, therefore, that if either the plaintiff or defendant should die before judgment, in existing actions brought to recover, such actions must abate, and, if none had been brought by the party injured, none could be commenced by his personal representative. It was the obvious purpose of this statute to reverse this rule of law, and to provide that the right of action should survive, as in case of damages to property, and, of course, be liable to be prosecuted by or against an executor.” It was also held, under this statute, that if a death was instantaneous, and simultaneous with the injury, no right of action accrued to the person killed, and, of course, none to which the statute would apply. Hollenbeck v. Railroad Co., supra. The statute under consideration was enacted to supply the manifest defect in the law as it thus existed, and to provide a remedy against the wrongdoer, if death ensued in consequence of his negligent or wrongful act. It may well be conceded that the remedy provided depends...