Stewart v. Great Northern Railway Company

• Decision Date: 24 January 1908
• Docket Number: 15,333 - (129)
• Citation: Stewart v. Great Northern Railway Company, 114 N.W. 953, 103 Minn. 156 (Minn. 1908)
• Parties: ANNA E. STEWART v. GREAT NORTHERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

114 N.W. 953

103 Minn. 156

ANNA E. STEWART v. GREAT NORTHERN RAILWAY COMPANY

Nos. 15,333 - (129)

Supreme Court of Minnesota

January 24, 1908

Action in the district court for Beltrami county by Anna E. Stewart as administratrix of the estate of Tobey R. Irwin, deceased to recover $5,000 damages for the death of plaintiff's intestate.From an order, Spooner, J., overruling its demurrer to the complaint, defendant appealed.Reversed.

SYLLABUS

Death -- Pleading Foreign Statute.

In an action brought in this state to recover damages for the wrongful killing of a person in another state, the plaintiff must plead the statute of that state which creates the liability and authorizes the action to be brought by him.

M. L. Countryman, for appellant.

W. E. Dodge and Wm. A. Tautges, for respondent.

OPINION

ELLIOTT, J.

This is an action brought by Anna E. Stewart, as administratrix of the estate of Toby R. Irwin, deceased, against the Great Northern Railway Company, to recover damages for the wrongful killing of Toby R. Irwin by the defendant in the state of North Dakota.The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and the appeal is from an order overruling the demurrer.The defect in the complaint is the failure to plead any statute of North Dakota which confers the right to maintain this action upon the administratrix of the deceased.

At common law no liability existed for wrongfully causing the death of a person, and none exists at present unless created by statute.Such statutes have been adopted in nearly all the states, including Minnesota.The presumption that the common law is the same in a sister state as in this state does not extend to the statutory law.Therefore, before a person can recover damages in this state for the wrongful killing of a person in a foreign state, he must plead and prove the existence of a statute of that state which creates a liability and also confers upon him the right to enforce that liability.The right of the particular person to maintain the action is as essential as the liability of the defendant.Until the legislature has declared who shall bring the statutory action and who shall be the beneficiary thereof the common law has not been changed to such an extent as to enable an action to be maintained.Woodward v. Michigan,10 Oh. St. 121;Usher v. West Jersey Ry. Co.,126 Pa. St. 206, 17 A. 597, 4 L.R.A. 261, ...