183 Iowa 444 | Iowa | 1918
The plaintiff brings this action in two counts, one bottomed on a common-law liability, and the other bottomed on a claimed violation of Section 4945 of the Code of 1897, which reads:
“If any person, Avithout lawful authority, Avilfully dig up, disinter, remove or carry away any human body, or the remains thereof, from its place of interment; or aid, assist, encourage, incite or procure the same to be done or attempted ; dr Avilfully receive, conceal or dispose of any such human body or the remains thereof; or if any person, Avith*445 the intent to commit any of the aforesaid acts, partially perform the same; or if any person wilfully and unnecessarily, and in an improper manner, indecently expose, throw away or abandon any human body, or the remains thereof, in any public place, or in any river, stream, pond or other place, he shall be imprisoned in the penitentiary not more than two years, or be fined not exceeding twenty-five hundred dollars, or both.”
The contention of the plaintiff is that, some time on the night of August 11, 1913", one Charles Hawthorne was killed by being pushed or kicked from one of defendant’s trains, known as No. 14, and the body left lying upon the track; that, while it was so lying, the company wrongfully mutilated it, thereby causing plaintiff, as the mother of the dead boy, to suffer great mental pain and anguish. The father assigned to this mother, plaintiff, an alleged cause of action existing in his favor, based upon the same facts. The body was discovered in the morning of the 12th, greatly mangled, and lying between the rails of. the track.-
Damages for the wrongful death of the decedent were settled in another action, and are not involved in this action. The only claim here rests upon the alleged wrongful act of the defendant in mutilating the body after death, resulting in great mental pain and suffering to the father and mother.
It will be noted that, on the first appeal, this court determined that, upon the record there made, the evidence was insufficient to justify a verdict for the plaintiff. It did not detexmine that the plaintiff did not have a cause of action against the defendant, if the facts relied upon were proven. It reversed it simply because the evidence submitted on that trial did not justify a verdict against the defendant, and remanded it for retrial. It was then up to the plaintiff to introduce further evidence to support her contention. If no further evidence were offered upon the second trial than appeared upon the first trial, then the finding of this court upon that evidence would be conclusive upon plaintiff’s night to recover. But upon the retrial, — a retrial having been permitted by reversal, — plaintiff might offer further evidence supporting her contention, and a case might be made against the defendant sufficient at least to go to the jury.
Of course, on an appeal to this court in a law action, a finding by this court that the record does not disclose sufficient evidence to justify a verdict against the defendant, is not a finding that sufficient evidence does not exist to justify a finding against the defendant. So, upon reversal, unless otherwise ordered, it was up to the plaintiff to make a further showing in support of her contention, and to this end she introduced further evidence upon the issues tendered. This court, however, nmy, upon an examination of the whole record submitted to it on appeal, determine that all the evidence which either party can offer legitimately is before the court, and that it is insufficient to justify a verdict against the defendant.; and it may, thereupon, by special
Upon the overruling of the motion for a directed verdict based upon the finding of this court upon the former appeal, the case proceeded to a retrial in the district court. At the conclusion of all the evidence, the defendant moved again for a directed verdict, based upon the insufficiency of the evidence to justify a verdict against it. This motion was overruled. The theory on which this motion was overruled is that the record as made upon this second trial was'not the same as the record made upon the former trial; that further evidence bearing upon issuable facts was submitted by the plaintiff; and that this was sufficient to justify a submission of the cause to the jury. A verdict was returned for the plaintiff. The overruling of this motion is the second ground of complaint on the part of the defendant.
This requires an examination of the record as now before us. We will say, however, that the record is substantially the same as made on the former appeal, with the exception of two or three matters, to which attention will be hereafter called. The opinion on the former appeal recites fairly the facts as they then existed in the record, and at
On the former appeal, Earl Polk, upon whom the plaintiff relies specially to prove one of the material facts in this controversy, testified:
“I never saw him going to the cornfield; I saw him in the cornfield. The porter followed him along and then got on the train. Deceased ran parallel, inside the cornfield, going the same way as the train. At the cut, he slid down the bank, and caught the back end of the sleeper. He had hold of the train, and someone in blue uniform pushed him off. I was watching. He fell. I was looking out of the window near the middle of the chair car. The weather was warm. My window was up. I was leaning out as far as I dare without falling off. I never saw him since they pushed him off and he fell. He fell from the rear steps of the sleeping car. The train was going reasonably slow up a big grade. When they pushed him off, lie lit about the middle of the rails. They pushed him off, and that was the last I saw of him.”
He adds to his testimony in this trial that he saw him lying in the middle of the track, after he fell or was pushed off.
This really is the only substantive testimony that the deceased was killed by being pushed or kicked off the train, and his dead body left lying upon the track. There is no evidence that any officer in charge of the train knew that he was dead and that his dead body was left lying upon the track. The most that can be said from this evidence is that, after he, fell from the train, he was seen lying upon • the track. There is no evidence that anybody knew or had reason to believe at that time that the fall had killed him.
As we have said before, there is. not sufficient evident to justify the jury in saying that any member of this crew on No. 14, the train from which he fell, knew that he was killed in the falling, or knew that his dead body was left lying upon the track. There being no knoAvledge in this crew, there Avas no knowledge to impute to the company that would call for action on its part. We may assume that the knowledge of this crew, if it had knoAvledge that the dead body was lying on the track, would be imputed to the coinpany and would be the knowledge of the company ; • and if, with this knowledge, as imputed, it wrongfully permitted its trains to pass over the track Avhile the dead body was there exposed, and mutilated it, the company might be liable; but knowledge must be shoAvn in these employees before any can be imputed to the company.
“That upon the occurrence of any serious accident upon any railway within this state, which shall result in*451 personal injury, or loss of life, the corporation operating the road upon which the accident occurred shall give immediate notice thereof to the board of railroad commissioners whose duty it shall be, if they deem it necessary, to investigate the same, and properly report to the governor the extent of the personal injuries, or loss of life, and whether the same was the result of mismanagement or neglect of the corporation on whose line the injury or loss of life occurred. Provided that such report shall not be evidence or referred to in any case in any court.”
In obedience to this requirement of the statute, it appears that the defendant company made to the board what is called a report of this accident, on a blank furnished by the board, in which it said:
“Report of accident at or near Strahm, Iowa, on Moberly Division of above-named road [defendant’s road], on August 12, 1913. Time, eight P. M'. Killed, one, Charles Hawthorne, a trespasser. Was stealing a ride on passenger train 14, engine 347, and fell off train and fatally injured.
“[Signed] General Superintendent.”
Assuming, but without deciding, that this report was competent evidence, we have to say that it fails to show the fact to establish which it was offered: to wit, that the company knew, prior to August 12, 1913, that the dead body of Charles Hawthorne was lying upon the track at the time of or before the passage of the trains that followed No. 14, which, it is claimed, mutilated the body. There is no date to this report, no showing when it was filed with the board of railroad commissioners, no showing when the information came to the company upon which the report was predicated, or by whom it was communicated to the company.If it be true, as contended for by the plaintiff, that Charles Hawthorne died immediately upon falling from the train, and was left lying upon the track, his death must have occurred about 8 o’clock in the evening of August 11th. The
So we hold that this notice, even conceding it to be admissible as evidence, does not furnish proof that the defendant knew, pifior to the time these trains that followed No. Id passed over the track and mutilated the body, that the dead body was lying upon the track and would be mutilated by the trains, if they were permitted to pass.
It is the contention of the defendant, however, that this paper was not admissible; that, the paper having been furnished to the railroad commissioners,. under the compulsion of the section hereinbefore set out, it was, by the terms of the section, privileged information, and could not be used against the company furnishing it.
We cannot agree to this proposition. The report which
Other questions are discussed, but we do not deem it necessary to pass upon them at this time, and the judgment of the district-court is — Reversed.