At common law no action can be maintained for an injury resulting in death. Baker v. Bolton, 1 Camp., 493; Carey v. Berkshire R. R. Co.,
The plaintiff does not aver that there is any statute of Missouri giving him a right of action, and we presume that; he does not rely upon such statute. He shows, indeed, by his argument that he relies upon a statute of Iowa. The questiоn presented, then, is as to whether the action can be maintained under the statute of Iowa.
, The statute which we understand the plaintiff to rely upon is section 2525 of the Cоde, and is in these words: “All causes of action shall survive, and may be brought notwithstanding the deаth of the person entitled to or liable for the same.” The plaintiff contends that the question as to whether an action survives pertains to the remedy, and must be governed by the law of the place of the court. He contends, therefore, that it is immaterial where the action arose; that, wherever it arose, the words of the statutе are broad enough to cover it, and that, if the court had construed them aeеord'ing to their plain import, it would have been so held.
But, in our opinion, there is a question involved deeper than one pertaining merely to the remedy. "Where a cаuse of action does not survive, it is to be treated the same as if it never arose. The cause of action in this case arose, if anywhere, in Missouri, but, if it did not survive in Missouri, and if thе courts of that state would treat it as if it never arose, we think it would be improper for the courts of this state to treat it as if it did. An act which, done in Missouri, does not creatе a liability in that state, would not create a liability anywhere.
Again, if the cause of action survives, it must survive to some person or persons. A cause of action which survivеs only by statute, must survive to the person or persons designated by statute. Now, suppose that, by a statute of Missouri, the cause of action in this case (as we understand the fact to be) survives to the intestate’s wife, if he left one, and, if not, to his minor child or children, оr father and mother,
In some states the measure of liability is fixed; in others it is limitеd; in others still, as in this state, it is unlimited. This consideration alone would be a strong reason for аllowing a recovery only in accordance wdth the law of the place of the injury. It is unnecessary to elaborate. That a right of recovery for such injury exists only by reason of the law of the place of the injury, has been held in Whitford v. Panama R. R. Co.,
The plaintiff contends, however, that if it should be conceded that the rules above exjwessed are applicable tо an action based wholly upon tort, they are not applicable to this. He сontends that his intestate had a contract with the company ; that the contract, implied from the circumstances under which he took passage, was to carry him safely, and that, such contract not having been performed, a right of action accrued to his intestate at common law, which can be enforced anywhere.
It is not to be denied, we think, that the petition shows that the intestate had at the time he toоk passage a contract with the defendant to carry him safely. Whether, if the petition showed such contract subsisting at the time of the injury, it would show a right of recovery, we need not deter
In our opinion, the demurrer was properly sustained.
Appirmed.