Sachs v. City of Sioux City

• Citation: 80 N.W. 336,109 Iowa 224
• Parties: ROSE SACHS, Administratrix, Appellant, v. THE CITY OF SIOUX CITY
• Decision Date: 10 October 1899
• Court: United States State Supreme Court of Iowa

80 N.W. 336

109 Iowa 224

ROSE SACHS, Administratrix, Appellant, v. THE CITY OF SIOUX CITY

Supreme Court of Iowa, Des Moines

October 10, 1899

Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.

THE defendant city maintained a bridge over Perry creek, on one of its streets, and while Lorenz Sachs was driving over it with a load of lumber, June 8, 1897, the supporting timbers gave way, and the bridge, with Sachs, fell a distance of twenty-five or thirty feet. He received injuries which caused his death September 20, 1897. This action was brought by his administratrix for damages October 7, 1897. At the close of the plaintiff's evidence a verdict was directed for the defendant, and judgment rendered thereon. The plaintiff appeals.

Affirmed.

Argo & McDuffie and Kennedy, Jackson & Kennedy for appellant.

A. H Burton, F. E. Gill, City Attorney, and T. F. Bevington for appellee.

OPINION

LADD, J.

Sachs lived more than three months after receiving his injuries and no notice whatever was served on the city within that time. The law, as it then stood, read, "In all cases of personal injuries resulting from defective streets or sidewalks, or from any cause originating in the neglect or failure of any municipal corporation or its officers to perform their duties in constructing or maintaining streets or sidewalks, no suit shall be brought against the corporation after three months from the date of the injury, unless written notice specifying the place and circumstances of the injury shall have been served upon such municipal corporation within sixty days after the injury." Chapter 25 Acts Twenty-second General Assembly as amended by chapter 63, Acts Twenty-sixth General Assembly. Had Sachs lived, his cause of action would have been barred by this statute. Starling v. Incorporated Town of Bedford, 94 Iowa 194, 62 N.W. 674. Reed v. City of Muscatine, 104 Iowa 183, 73 N.W. 579. Unless, then, a new cause of action, in event of a wrongful death, is created by section 3443 of the Code, there can be no recovery. That provides, "All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same." In other words, the cause of action no longer dies with the party injured, as at common law, but passes to the administrator, as assets of the estate. It does not spring into existence from death, but, having a previous existence, does not perish with him who was entitled to maintain an action thereon. Sherman v. Stage Co., 24 Iowa 515; Conners v. Railway Co., 71 Iowa 490; Dwyer v. Railway Co., 84 Iowa 479; Worden v. Railway Co., 72 Iowa 201; Kellow v. Railway Co., 68 Iowa 470. See also, Taylor v. Inhabitants of Woburn, 130 Mass. 494. As Sachs had lost his cause of action by failing to give the required notice, there was nothing to survive, and on which the administratrix could base a suit. The ruling in Maylone v. City of St. Paul, 40 Minn. 406 (42 N.W. 88), rests in the wording of the charter of the defendant city, which required notice "that the person injured will claim damages of the city for such injury" to be served, and also on statutes by which the cause of action, in event of wrongful death, is expressly given the personal representative. It will be observed that our statute does not limit the necessity of notice to claims by the injured party. The point has not been decided in Wisconsin, though in McKeigue v. City of Janesville, 68 Wis. 50 (31 N.W. 298), it was intimated that, had deceased lived out the time within which notice should have been served, the action would have been barred; while in the earlier case of Parish v. Town of Eden, 62 Wis. 272 (22 N.W. 399), the view entertained by the supreme court of Minnesota finds approval. The statute of that state seems to be construed as creating a new cause of action. Topping v. Town of St. Lawrence, 86 Wis. 526 (57 N.W. 365); McKeigue v. City of Janesville, supra.

The necessity of notice in such case results from the decisions that the action of the personal representative is based, not on an independent cause of action, as in Minnesota and Wisconsin, but on one existing in favor of the deceased at the time of his death.

II. But it is contended that the section requiring the service of notice has no application where the injury originated in the neglect of the municipality to properly construct or maintain a bridge. In other words, the appellant asserts that this bridge was no part of the street, and for that reason no notice was required. Paragraph 5 of section 45 of the Code of 1873 reads: "The words 'highway' and 'road' include public bridges and may be held equivalent to the words 'county way,' 'county road,' 'common road,' and 'state road';" and section 1001: "Bridges erected or maintained by the public constitute parts of the highway." It will be observed that "street" is not specifically mentioned, and it is said that by implication it is excluded. But "highway" is the broader term. All streets are highways, but not all highways are streets. Tucker v. Conrad, 103 Ind. 349 (2 N.E 803); Penny Pot Landing v. City of Philadelphia, 16 Pa. 79; Benedict v. Goit, 3 Barb. 459; 24 Am. & Eng. Enc. Law, 3. Judge Elliott, in his work on Roads and Streets (page 12) says: "A street is a road or public way in a city, town, or village. As the way is common and free to all the people, it is a highway; and it is proper to affirm that all streets are highways, although not all highways are streets. * * * 'Street' is a generic term, and includes all urban ways which can be, and are generally, used for ordinary purposes of travel. * * * It is, in the strictest sense, a highway free to all, and maintained, not for private gain, but public benefit." "Street" is defined by Webster as "originally a paved way or road; a public highway; a thoroughfare in a city or village;" and in the Century...