*1 Ry. al. v. Great Northern is remanded, retry with directions to the court below to same.
Reversed and remanded. Brantly Holloway and Mr.
Mr. Chief Justice Justice concur.
DILLON et al., GREAT RAIL- NORTHERN Respondents, Appellant. CO.,
WAY (No. 2,625.) (Submitted March 1909. Decided March 23, 1909.) Pac.
[100 960.] by Negligence Railroads Death Fellow-servant Act —Statu- — — tory Construction —Survival Statutes.
Survival Statutes —Nature of. presupposes 1. A survival statute of a existence of action in deceased; favor of the it does not a new create cause of preserves representatives forward and carries his heirs or which deceased had demise. before his Employees by Negligence Railroad Act—Construc- —Death —Fellow-servant tion —Survival Statute. Held, Chapter (Laws 1 of Session Laws of 1905, p. Codes, 5252]), provides 1 railroad their sections in section [Revised companies damages by shall be liable for all any sustained employees neglect, because of the section 2 wrongs, etc., willful of fellow- in servants, in employee case death any injury so consequence sustained, right by in of action shall sur- may prosecuted be vive and personal maintained his heirs is a survival representatives, and does not create a cause of new damages by action favor heirs sustained them reason deceased. the death Death —Survival Action. Same—Instantaneous brought an action of a 3. Where employee, railroad Chapter 1, 1905, p. provisions (Revised under the Laws of Codes, 5251, 5252), to alleged sections recover for the wrongful kill- deceased, agreed ing statement of facts showed that his death instantaneous, in a there could not collision survival of an heirs, since, wrong death and the of ever having deeedent point time, no concident cause of action been accrued favor, none could survive in and therefore the heirs. District Court, County; Appeal Flathead J. E. Erick- Judge. son, ’09 T. et al. guardian Dillon in her own and as Winifred
Action Railway against children, of her minor the Great Northern *2 Company. judgment appeals. From a for plaintiffs, defendant and Reversed remanded.
Mr. I. Parker N Veazey, singer, Appel- and Mr. W. N. off lant. prevents
Instantaneous death
the birth of the deceased’s statu-
tory
action,
cause of
of
prevents
possibility
and hence also
survivorship.
(The
(Barton
Brown),
Corsair
v.
The manifest operating employees engaged in the hazardous business to ex- constitutional; limited it is when When thus railroads. Chicago (Akeson v. it becomesunconstitutional. tended further Q. 677; see, 75 W. Johnson Iowa, 54, also, 106 N. B. &B. A. By. Minn. 45 W. 8 L. R. 43 Paul etc. v. St. By. Sup. 127 8 Ct. Mackey, U. S. 205, 419; Missouri Pontius, etc. B. B. v. 107; Chicago 32 L. Ed. L. Bucklew Cen- Sup. 585, Ed. Ct. S. U. 103.) 21 N. An em- Co>., Iowa, 603, W. Iowa tral whose not duties are extra-hazard- company, railroad a ployee entering car be trans- merely a railroad not, by does ous, powers law-making ported, come within the constitutional body legislation state, in the exercise which class may lawfully enacted; they engaged not in an this kind be not pursuit; exposed become extra-hazardous do discharge of engaged duties, in the their which are perils, while always them all travelers. equally not shared with other he equally roadmaster; assistant The above is true an engaged perilous pursuit. (Butler Chicago etc. B. in a 54 N. W. Iowa, 206, coexisting liability requires this statute two created in- employee give must an birth, viz., there conditions jured “engaged at time who, accident, injury to operating and this railroads,” hazardous business negligence of employee an must been caused was, employed also employee, time, another who at that *3 (Strohle engaged operation of v. in “the use and a railroad.” Rep. 59 W. Chicago 555, 456, 70 Am. 31 N. Co., Iowa, Iowa, Foley By. Co., 64 Chicago B. I. & P. 66; also, v. see, By. Co., 124; Burlington C. B. N. 21 N. W. Malone v. & 644, Beddington 756, Rep. 11; 21 54 Am. v. Iowa, 417, N. W. 65 800.) By. Co., Iowa, 96, 108 78 & St. P. N. W. Chicago, M. Smith, Respond- Nolan, Messrs. Walsh & Mr. D. F. ents.
Assuming in question that the Act is a survival does recovery an instantaneous death the statute? forbid contrary question has so often The been determined rulings is no to that be there doubt that effect must deemed The have been into the statute. idea comes from weaved early country cases which courts of this some Massachusetts neighboring England states, New and even generally, (Broughel Co., v. Southern N. E. declined to follow. Tel. 437, 404.) R. 45 Atl. 49 L. A. The same indis- 617, 72 Conn. reasoning of the Massachusetts eases is position to follow quite generally. prevailed declined, Tennessee to have found Imperial Co., 698-704, Boach v. M. 7 Fed. though as shown of that Act its court held state a sur- 224, 7 Saw. T. ’09 v. vival (Nashvüle statute. etc. B. B. 2 Prince, Heisk. Fawlkes v. N. & B., 663.) D. B. 5 Baxt. question The was dis- posed of in contrary New York rule, Massachusetts though the though statute treated as of the deceased representatives. (Brown survived to his <& L. Co., 194.) B. Judge Y. And Comstock Buffalo sensibly 465, declared in Whit Panama B. 23 N. Y. ford thing strictly there is no such aas death. instantaneous supreme The court of Carolina, likewise, though holding South their Act (Price to be a survival statute v. Bichmond & Dan- ville B. B. Rep. S. 413), C. Am. St. 12 E.S. permitted held that it whether the death was instan- lingering. (Beed taneous or v. Northeastern B. Co., 37 S. C. 289.) Kentucky S. E. a like conclusion was reached. (Givens Kentucky Co., Ky. 231, 257.) C. B. 12 W. The S. Massachusetts cases in Maine, are followed ar- but the results statutory rived at have been overcome recent enactments. supreme them, court of Dakota was South convinced (Belding however v. Black Hills W. etc., S. D. 53 N. 750), persuasive were in Mississippi. (McVey held B. v. Illinois Cent. B. 73 Miss. South. Per- haps little, if anything, could added to the discussion of the subject on its merits, if has as it is set forth any, opinions any necessity referred to. Nor is there close matter, question discrimination since the statute adopted authoritatively from the state of Iowa and has been highest permitting construed court of that state as ' recovery in of instantaneous supreme cases death. The *4 originally state to have been persuaded seems somewhat reasoning (Sherman of the Massachusetts cases. 515.) Iowa, 24 Later it Stage Co., recognized Western that there thing strictly a (Kellow as can be no instantaneous death. By. Iowa, Rep. 858, Central Iowa Am. 466.) finally squarely adjudicated 27 N. W. And it 740, W. N. death was fact that the instantaneous no obstacle recovery. (Conners v. Burlington at all to Rep. 32 W. 60 Am. 465; Worden Iowa, v. Humes- v. Great legislature The ton & B. 33 N. W. Iowa, being adopting of this and uncertain state, the Iowa general might whether statutes not be construed our survival law being Iowa, as added to the comprehensive as as those put past that an could section which would it doubt action of death against employer case maintained common fellow- wrongs of a resulting from the or willful opera- wrong connected use and servant when the with the railway. tion of a word bare fact that the
Is the law survival statute? The controlling. at is not all “survive” occurs the statute right thing of a can be no such Logically, there any died, never, for The man who to recover death. instantaneous, circumstances, lingering or whether his death was no right for action to recover his own death. So had possibly for recover death could “survive” to his sue, is to to sense which the word indicate the used given promissory on a to decedent. instance, for note light general legislation to be construed statute is try get subject. legislature We to on are to at what the give independent right of action a new meant—whether to and carry death, for it to over the heirs whether intended to had which the deceased would have them a if he had died. “general theory Ameri- borne mind that to be “newly subject is that on this action” statutes
can “entirely which the and distinct aetion created,” he for two might had, have had lived.” And this deceased death, the action is he could namely, that reasons, second, that; and because it is not fair no action earn, equivalent of all he to recover could enable the permit fair to them it not to recover particularly is more suffering he endured. pain for the legislature assumption that the with the had then, start,
We course general and current of from the depart purpose no examining subject. language used, And, on the legislation they did not intend to do supports the view so. find we *5 Ry. T. ’09 et v. Appellant says right given that it is the the in- jured servant, referred to in section, first which is carried over to personal his or representatives heirs right is his —it action which survives. say But the statute right does not “his” of action survives, right but “the” action; is, right of action lives after him in personal representatives. Besides, if it was intended that simply there should be abro- an cum, gation of the personalis common-law rule “Actio moritur persona,” the section would have ended with the word “sur- vive.” That would have been right sufficient. His would then accrue to his executor administrator. wholly unnecessary to make provision. further An Act equivocal even more ambiguous in its in view language, similar considerations, grant right was held to a new and not to be a survival statute in Matz Chicago v. Co., & A. B. 85 Fed. 180-188. protected
Was the deceased within the class the statute? great weight authority modern is to the effect that those engaged in repair construction or work, however it with be lawyer accountant or employed company, the railroad are fellow-servants of train operating crews the trains on going to or ride from their work, and that for the resulting latter, former, there is no (Texas at common law. & Pacific 67 Smith, B. Fed. 14 C. C. A. 31 A. L. R. see, also, etc., v. Boston 195 Mass. 81 E. 9 Kilduff s., 873.) A., L. R. n. unquestionably
The statute intended for the relief of all those who would barred of a of recovery by reason of who injuries the fellow-servant suffered rule, the use and operation state, railroad indicted in the course employment. benefits are their held, Iowa, Its to extend to employees engaged who are all operating business of are, by railroads, or who the nature of their employment, ex- moving hazard incident (Smith posed trains. Iowa, 583, B. Humeston & S. N. W. 545; see, also, Chicago By. Bayburn Iowa, 375; Schroeder al. v. Great 520;W. 38 N. Iowa, 637, N. W. Central I. *6 By. (Iowa), 80 N. W. Chicago Smith v. & G-. W. Sup. Artery, P. 137 U. S.
Chicago, M. & St. L. Ed. Ct. opinion HOLLOWAY delivered the
MR. JUSTICE court. right, by in her own brought Dillon action Winifred
This North- against guardian the and of her minor children, wrong- alleged damages for the Railway Company ern to recover Dillon killing Dillon, of Winifred of Thomas the husband ful The cause was submitted and the the minor children. father agreed facts. district an statement of court upon necessary on this agreed to be considered upon, facts so far as road- employed as assistant are that Dillon was appeal, Thomas engaged by company is a railroad defendant, master freight passengers between St. Paul as a common carrier and September while Dillon was Seattle; 20, 1906, and that on riding freight train, in the caboose east-bound properly riding in he was run into Whitefish, the caboose which was train, by collision, “and, reason of said by east-bound another immediately instantaneously Dillon was and Thomas said second of time after killed, and did not live survive accident; that said collision and the resultant instantaneous said negligence killing of Thomas was due to the said railway company, employees of said defendant carelessness of * * * Dillon; Thomas fellow-servants the said who were resulting killing collision, instantaneous of said that said any manner, not in or to what- Dillon, was extent Thomas negligence of Dillon, the said Thomas or of said ever, due to judgment From a rendered and railway company.” defendant railway com- plaintiffs, the defendant favor of the in entered appeals. pany law in- person at common if one that, was a rule
1. he wrongful another, act of had a action by jured (a) wrongdoer sustained him: If against the bringing action, died his party before the cause of injured T. ’09 et al. . [Mar. literally him; brought with if (b) died he his judgment, died (c) before death; action abated with his if injuries were occasioned fellow- his injured servant, party could not recover from the common employer, appeared. if recognized that fact The rule is country enforced in this generally; as'a some states rule of the common law, while in others it is embodied stat- utes. However, practically every state rule has been modified abolishing (a) subdivisions (b), and substitut- ing provisions by which, lieu thereof case of the death injured party, personal representatives may his heirs or prosecute his action, and recover for the benefit commonly designated estate. These statutes are “survival ’’ *7 In of by statutes. some the the rule states further modified is by from permitting the common master one servant injuries by negligence whose of are occasioned the a fellow- making servant. qualification generally Statutes this are re- ferred as “fellow-servant statutes.” of the The above rule law, by general (sec. common as modified our survival statute (secs. 6494), 5251, 5252, and our fellow-servant statute Revised Codes), recognized been Every has and enforced in this state. presupposes survival statute the action existence of cause of injured party. in favor of the Such a statute not create does only of new cause carries forward which the injured party the before his had death. generally
2. It also a rule speaking, of the common law, person for of by wrongful the death act one caused the of any remedy by another there was civil action. Because English parliament the harshness this rule in 1846 en- (Stats. 93), generally a statute 9 & 10 Viet., acted c. known Campbell’s “Lord Act.” This Act is the model after which nearly every in like statute has been enacted in this state may vary English from Union. While our statutes Act in they gen- particulars, are all framed with the some minor same give view, viz., to certain kindred of the purpose eral damages action for sustain deceased a death of the Our reason of the deceased. statute is found 38 Mont.] slight and, while it bears Codes, 6486 of the Revised
section general purpose English statute, the resemblance same. marked to call attention the fact sufficient mention
To prosecuted common-law under distinction between an prosecuted Lord one rule first above mentioned and injured party com- In seeks Campbell’s Act. first case suffering, for pain and pensation physical for his mental and earning and for decreased attention, time, for loss of medical compensation kindred capacity. the second case the seek In earnings come to portion such deceased’s as would companionship for the lived, possibly, them had he loss and, damages sought dam- the first case the and the like. injured second ages himself sustained. In the party which the damages sought case are those which his kindred sustained. injuries But to avoid the defense that Dillon’s resulted prosecuted this action fellow-servants, of our fellow-servant It is provisions under the statute above. assembly legislative (Laws 1), p. an Act ninth provides: Every person corporation operating a or rail-
“Section state, way or railroad shall liable all any person employee corporation or sustained neglect employee employees other consequence of or mismanagement employee other thereof, thereof, consequence wrongs, willful employees *8 any of omission, employee or of commission other whether mismanagement when employees thereof, neglect, such or or any manner wrongs, opera- connected with the use and are railway or they or railroad on about any shall of tion liability no which restricts and contract such employed, shall be binding. legal or be ‘‘ 2.,- any the of employee In of such case death con- Section damage sustained, right so the or of action of sequence may prosecuted by and be maintained survive shall personal representatives.” or
494 Dillon ’09 T. The Act is carried forward into the Revised as sections Codes 5251 and 5252. may open It be an question legis- whether lature intended to create a new only cause of or intended to abolish the defense of a fellow-servant. But, assuming that it was the intention to create a new cause of action, our first inquiry then is: whose favor does such argued cause of action It by arise? respondents for counsel and, it arises in favor for heirs, their earnest contention, we question would deem the answer this so mani- fest require from the statute itself as not to serious considera- tion. In the first pur- instance the title Act indicates legislation. pose The title reads: “An Act to determine liability persons corporations operating railways or or damages this for by employees railroads state sustained ’* thereof, and to contracts restricting liability. declare void purpose to provide determining The avowed for liability companies employees railroad to their for damages sustained employees damages their sustained The heirs. —not emphasizes first section of the Act provides this view. It company damages the railroad shall be all liable for sustained employee, practically and, argument to conclude upon provides question, that “no contract which restricts such legal binding.” liability shall for respondents, Counsel rely chiefly, altogether, upon seem to if not second however, any suggestion are section; but we unable to find here which exceedingly plain. their view. This section seems to us sustains any new cause of only not mention action. It refers does right What action. action? Clearly, right recognized by expressions section. first The “such damage “injury or so employee” and sustained” either refer section, subjects in first absolutely same expressions That these “the meaningless. action”' subjects kindred the first section we entertain do refer clearly a second This section no doubt. nothing else.
was intended Act purpose the whole is to enable an manifest em- company to recover railroad the com- a ployee *9 of pany injuries upon him reason inflicted injuries and, of a in case results such fellow-servant, death accrued, then to enable his after the cause of action has judgment. personal representatives prosecute action to in favor of of action If it was intended to create a new cause legislature cer- damages them, heirs for sustained title tainly give any intention in the did not intimation such body in intention securely of the concealed such Act, body of expressed the statute. If such intention was part the stat- exceedingly it is whether doubtful that feature effective, ute would be does not cover that since title all; expressed at intention is not either we hold that such body in a the title the Act. The Act does not create cause of action favor of the heirs. reasonably that complaint
While we feel certain upon theory that one to action was framed the action is damages which these kindred recover suffered on account absolutely death, Dillon’s we are not satisfied that this was the- pleader, and we led, therefore, intention of the to consider- upon question assumption this one arises second —and damages this is an action to recover which resulted Dillon’s consequence question of his death —and that' is: Does estate as agreed of facts show a cause of statement favor shows, agreed which survived his death? The statement instantaneous, death was and that that Dillon’s he did not sur- for a of time after the accident. vive second (section general above) statute to- Our relates party which “arose in favor of prior of action such to- a cause ’’ provides of 1905 Section the Act his death. case- that, consequence employee injury of an death sus- forth in section then the as set action for tained goes shall survive. with- occasioned thing saying which never existed cannot In survive. out existed, of action survive must have for the order matters, these legislature understood used the term accordingly. elementary it is course, Of “survive” person. using. in favor a deceased cannot exist *10 ’09 T. et al. phrase the consequence “in any injury,” then, we think the legislature express meant to the idea expressed same that is general the survival statute above; meaning and the of this Act of 1905 that, if a cause of injured action arose in favor of the employee prior right to his death, the of action which he thus had may and survives, prosecuted personal his heirs or representatives. Did a cause of action arise in favor Dillon prior to death?
A cause of right action is party which a has institute judicial proceeding. (Meyer Van Collem, (N. Y.) Barb. 230.) applied As tort, composed it is right plaintiff wrong (Veeder and the Baker, of the defendant 156), wrong Y. and the infringement the defendant is the plaintiff’s right. (Atchison, Rice, T. & S. F. R. Kan. Pac. To constitute a tort, then, plaintiff’s right infringed by must have been wrongful act of the with the defendant, plaintiff result that damages. elementary suffered With principles these before us question possible instantly Is for one recurs, who is killed to have a wrong cause of action for the ? caused his death very statement of question would suggest seem to its own answer. appreciable length Since there is not of time wrong or, between the and the death, wrong other words, the being death point time, coincident instant wrong is wrong exist, committed the victim of the has ceased to impossible and it seems that there is cause of action in favor of such victim. This conclusion seems inevitable when the ele determining ments which are to be considered in the measure of damages are taken into account. physical Those elements are pain expense suffering, attendance, mental of medical earning time, capacity. loss of and decreased In the case of every one instant death of these elements is presume absent. To any one presume the existence of of them is to did not life appreciable extinct until some elapsed become had time after wrong committed, negatived a fact which agreed of facts this statement case.
In their brief referring counsel for to the respondents, Act say: “If it be assumed that this is a survival giving of action to personal representatives all that estate of the deceased lost his death, the re- spondents dispute that there is no because the they death was instantaneous” —and cite cases which con- support tend Broughel view. The first ease is v. Southern Tel. Co., N. E. 72 Conn. 45 Atl. L. R. A. considering
in that provides: case the a statute which “All actions for person, do or whether the same * * * instantaneously do not or otherwise result in death *11 opinion shall survive to his In executor administrator.” it is intimated that the of “instantaneously insertion the words change meaning or otherwise” not prior did statute, dictum, but this is it proper whether is or is not a construc- of the earlier stop tion statute we not inquire. need to In Prince, Nashville etc. R. 2 (Tenn.) 580, Heisk. peculiarly worded statute of Tennessee was considered. The court held that the statute creates cause of action in favor of damages certain heirs of the deceased suffered on them death account of the deceased. If the correct statute, course, construction of the then, it wholly imma that the terial death the deceased was instantaneous. Co., N. & D. Fowlkes v. R. R. Baxt. (Tenn.) considers same statute that was
same considered referring above, Case but, Prince without to appar that case, ently to reaches a different conclusion as meaning of the question decided with statute. The reference to the statute limitation, court seems hold that could be statute, case of a survival had under instantaneous death. following eases, In each cited respond counsel for after, patterned to, and similar ents, Campbell’s a statute Lord (Roach Imperial (C. considered. v. M. Co. Act was 7C.), Fed. 224; Co., v. Richmond Price etc. R. 698, Saw. S. C. 413; 12 E. Rep. 700, S. Reed
26 Am. St. Northeastern R. ; E. 289 Brown v. & S. L. S. 37 S. C. R. Buffalo 38 32— Mont., Yol. ’09T. 465.) Lord 191; 23 Y.
N. Y. Panama R. Whitford fami compensating the Campbell’s “An Act for Act is entitled sense a It is persons lies of accidents.” killed in favor of of action but creates a new cause the kindred of the deceased.- 93, the Ry. Co., s.,
In Blake 18 Adol. & E., v. Midland n. upon queen’s placed said: “Beliance was court of bench action- newly given in what cases the section, first which states argument- may although ensued, has be maintained death recovered, he had would being party injured, that the if represent his solatium, therefore so shall been entitled to Act does be evident that this on his death. But will atives gives representative, but right- not transfer this to his on different representative totally new to the every jury ‘in action the principles. enacts that such Section may proportioned think may give resulting parties respectively injury such death brought.’ The action shall be for whose benefit such whom and suffering deceased, damage not the loss measure family.” That resulting from his death but the English is mani statute correct construction this is the recognized universally by the courts of this is almost fest, and (C. 119 Fed. (Peers C.), P. L. & W. Co. v. Nevada country. (C. City Topeka C.), Fed. Schwarz 400; Hurlbert *12 Paper 208; N. W. v. 371, 10 Perkins Judd, 28 Minn. Oxford Phillips, 64 Vicksburg R. Co. 71 Atl. (Me.), 693, South. Miss. opinion above, v. Panama R. dissenting
In a Whitford Campbell’s construes Lord Act as Justice Comstock Chief directly opposed that reached conclusion statute —a weight opposed decided English courts, by the country. asserts that not He also there is authority in this dissenting death. is to this thing instantaneous such by counsel particularly is directed attention that our opinion agree are unable with either but we respondents; for jurist. learned by reached conclusions Ry. Ky. 12 W. Kentucky 231, S. Givens Cent. R. Act, but 257, Campbell’s a statute somewhat similar to Lord companies, was treated. applicable only made to railroad English stat- brought An action under a statute similar to and, decedent, ute recover for death of seeks to wholly that the every immaterial course, it is treating cases death was decisions of courts instantaneous, arising arising authority under those statutes are in a ease not under a survival statute.
But, speaking
re-
1905,
further of
Act of
our
counsel
spondents say:
any necessity
“Nor is there
close dis-
crimination in
matter,
question
since the statute in
adopted from
authoritatively
the state of Iowa, and has been
highest
construed
of that
permitting
state as
recovery in
cases
instantaneous death.”
Iowa cases
Four
are cited. The
first of these
Stage
is Sherman v. Western
in a few moments that injury for the death; but, person an instant as the survived the death was’instantaneous. period, it cannot be said that brief a few survived the The evidence shows that Carter rehearing said: examined moments.” And on it is “We that with- record, and are satisfied the evidence contained the substantially as stated out conflict it establishes the facts think, we that the death opinion. beyond controversy, It shows injury. that with We concede not simultaneous was brief, perhaps not exceed- two time between the occurrences was holding question consid- ing minutes. Our on the three to five length that Carter however, not on time is based, ered upon fact that he lived after injury, survived ’’ occurred. Am. Ry. Co., 490, Burlington Iowa, In Conners v. the court considered the ease Rep. N. W. of 1873. 2525 is 2525-2527 of the Iowa Code Section sections general liability 2526 a stat statute. Section general survival again terms, while peculiar rather section couched in ute, While provision for the survival of action. makes death, the fact it was is a case of instantaneous was this permitted, it is upon all; while and, dwelt not at upon theory whether it is cause difficult understand survived, upon to the deceased whether accrued gave death of deceased rise to theory that the 2526. The in this statutes considered under section Act of 1905. to our no resemblance case have Iowa cases cited is Worden Humeston etc. these The last of opinion N. W. Iowa, 201, 33 there is R. complaint at all. The alleged statute any reference instantly killed, and the defendant asked intestate says: favor. in its The court “The instruction peremptory instruction, assigns give defendant refused presented question here was raised in error. refusal Burlington C. R. & Iowa, N. of Conners ease Am. adversely 32 W. ruled Rep. *14 Ry. position by err, taken the defendant. The did not we think, refusing only This instruction.” is the reference any question involved in the case which we have now before us.
In section 1307 of the Iowa of 1873, we find a Code statute similar to our Act This statute was in force at the time each three last above cases it is decided, but of them; and, mentioned far determine, so we can every appears one those cases prosecuted to have been the statute mentioned Case, Conners and not under sec tion 1307 above. Under most favorable all view, that can be said is that the Conners Case to imply seems that a cause of action arises in case of instantaneous death, that, prob too, ably under a statute, survival and this followed in the Wor den Case. The Kellow Case was not case instantaneous death, and the Sherman Ca'se arose under a statute similar to Campbell’s Lord Act. respondents’ Reference made in brief of Minneapolis Ry. ease & St. L. Herrick, 127 U. S. 8 Sup. Ct. 32 L. Ed. for the Iowa statute similar to our of 1905. present law The case does not question only involved here. decides that the Iowa statute is not conflict with the fourteenth amendment to the Constitution of foregoing United States. The all the cases cited respondents in favor their contention that this action can be under our of 1905, maintained statute even though Dillon met instantaneous death.
Having reached the conclusion that our Act of 1905 is sur- interesting vival to know the definite conclusions by the courts in actions reached of this character, where death say We every was instantaneous. undertake to presupposes that the had statute deceased at one time of action occasioned that he injuries, and judg- commenced his and died either before it went to having ment, right, he before he died exercised it. or, an action speaking the administrator to recover dam- death, brought instantaneous ages in a case of under a survival Justice Massachusetts, Chief Shaw “In statute said: T. ’09 et al. casualty case, first of action where the relied on as the cause party injured simultaneous, and the death it seems were con clear that the survive. cannot The case templated by party the statute must of such nature that the injured himself had a of action. have, time, must at some during party The cause of action must accrue the lifetime of the injured. during time, Here no the life of intes there was the life tate, accrue, at which a cause action could because *15 would closed with accident from which a cause of action (Kearney, Boston etc. R. Admx., have accrued.” v. otherwise (Mass.) 108.) uni This case has been followed Co., Cush. formly by (Moran Hollings, 125 the Massachusetts court. v. Riley Co., 507; Corcoran v. & A. R. 133 Mass. Mass. Boston 292.) R. Co., R. 135 Mass. v. Connecticut brought In an considering character, action of this in Illinois supreme Mississippi, survival statute, Pendergrass, 425, 954, R. 69 Miss. 12 South. said:'“If C. Co. v. prevent framed declared, we statute was to as have personal right of action the death abatement of the upon own natural injured person, then it bears its construction meaning to be im or hidden face. And if no strained is its language survivorship is to parted statute, to the might have personal testator or intestate actions which the could prosecuted. But the -testator intestate and commenced injuries which begun prosecuted an action never form put To the ease another ended in instantaneous death. presents it—can the declaration —the form which phys for the mental and representative personal had be anguish by the deceased at the time pain endured ical anc! of, death following injury complained where the self-con proposition so simultaneous? were confusing. appears self-confuting as to tradictory and thought. opinion that "Weare unnecessary pursue to personal no action where has representative personal that, where death was right, had such never the deceased mind, healthy impossible, it injury, with simultaneous instantaneously action in the man right of a conceive even to Ry. v. Great approved, it followed, and the doctrine of killed.” This case is 19 South. McVey Co., v. Illinois C. Miss. R. Kentucky was statute in the same conclusion Under a survival (Ky.), (Hansford’s Payne Co.,& 11 Bush reached. Admx. v. D. 53 N. Black Hills R. 3 S. Belding construing a the same conclusion survival W. opinion in quotes approval with and the court reached, Kearney R. above. Boston etc. prosecuted action could have
In order these heirs ais survival which we have determined Act of under the necessary appear that statute, it the cause his prior death; and, his arose in of Dillon himself favor instantaneous, impossible that such death was it seems us wrongful act in his favor for the cause of action could arise arise and, his as such cause action did not death, caused was not prior we hold there death, right of action. as, appellant, propounded counsel for questions Other if whether the of 1905 is unconstitutional Act instance, railway employees generally, as intimated applicable to Am. Iowa, Chicago, Stroble M. & St. P. *16 necessary will Rep. is not that 31 N. and whether it W. mis accompany negligence wrongdoing ful shall shown to Act in state a of action under the management, order to ques necessary to determine either of these of 1905. It is not say that, to instance; in but it is sufficient while tions praiseworthy, it is object principle, of the Act of meaningless, language practically to make couched in such meaning as make little its it of at to so far obscure least say that a similar statute has been practical use, and or no many years does not cure the defects state force another efficiency. its or add to Act, reversed, and the cause is remanded to judgment to dismiss the ease. directions with court, district - Beversed and remanded. Brantly concur. Mr. Mr. Chief Justice Smith Justice Yegen Bros, ’OS T. Wilson et al. v. et al. Rehearing.
On Motion (Submitted April 16, April 29, 1909.) 1909. Decided MR. JUSTICE HOLLOWAY opinion delivered the of the court.
A rehearing motion for submitted, has been but the same is Upon overruled. further consideration, however, we think there is not room for in enacting doubt sections legislature and 5252, Revised Codes, the did not intend create right new merely recognized existing at law, sought common available, to make that notwithstanding the of a fellow-servant. Brantly and Mr. Justice concur. Chief
Mr. Justice Smith WILSON YEGEN BROS. al., et Re Appellants, al.,
spondents.
(No. 2,634.) (Submitted March 1909. Decided March Pac.
[100 613.] Partnership Certificate—Disability to Sue— —Fictitious Name— Evidence—Admissibility—Quantum, Meruit —Plead-
Waiver — ing. Partnership Partners Individual Names. —Action express statutory authority the absence permitting an action brought copartnership, the name to be a suit involving part- part- properly nership claim was instituted in composing the names nership. Statutory Disability
Same—-Fictitious to Sue —Waiver. Name — Provisions — plaintiffs copartners 2. Where the fact were appear did not complaint, objection they the face and the legal had no sue, capacity to inasmuch as doing were business under a ficti- *17 required name and had failed to file tious the certificate section 5504, Codes, {Id., was not taken 6538), Eevised will be deemed answer sec. defendants objection; to have waived the and the fact plaintiffs partners did not know that were until after one of their wit- immaterial, nesses had testified to that effect was late then since it was not too- to ask question. leave to amend the answer so as to raise the