160 Iowa 160 | Iowa | 1913
The defendant is an Illinois corporation. The decedent was a resident of Illinois and an employee of the defendant in charge of a street car as a conductor. The accident occurred on December 31, 1909, in Illinois; the decedent being crushed between two ears in a rear-end collision while engaged in adjusting the trolley to the line at the rear of his own car. The cause of action therefore accrued in Illinois and arose under aw special statute of that state. The decedent left a widow and child. The administrator was a resident of the state of Illinois. The alleged errors assigned for our consideration are few in number. The further facts material for our consideration will be stated in appropriate place in the discussion of points presented.
It is the general rule that a foreign administrator cannot maintain an action in this state to recover the assets of
In the case before us the right of action arose in Illinois under a special statute thereof (Hurd’s Rev. St. 1911, chapter 70). This statute was as follows:
Section 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such ease the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under .such circumstances as amount in law to felony.
Sec. 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased*164 person, and shall be distributed to such widow and next of kin in the proportion provided by law, in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injury resulting from such death to the wife and next of kin to such deceased person, not exceeding the sum of $10,000.00. [Provided, that every such action shall be commenced within one year after the death of such person.]
The last sentence is inclosed in brackets for convenience of reference later. It will be observed from the foregoing that, while such action for damages must be brought in the name of the personal representative, the amount recovered “shall be for the exclusive benefit of the widow and next of kin.” It is quite clear, therefore, that the damages sought are not assets of the estate in the ordinary sense that resident creditors have claims thereon. There might, ■ however, be next of bin residing in this state. Whether their interest would operate against the right of a foreign administrator to sue is a question which we do not find discussed in the cited authorities. In some of the cases cited above, the ground of the holding was that, under the statute creating the right of recovery, such right was confined to the administrator of such state, and that, unless he could bring action in a foreign state, nobody could bring it (Conner v. Railway Co., supra); and upon the further ground in the cited case that there was no provision in the statute of Rhode Island for permitting the Connecticut administratrix to qualify therein.
In this state we have a very simple and reasonable statute which permits a foreign administrator to qualify in this state and which provides the method by which it shall be done. Our section 3306 is as follows:
Sec. 3306. Foreign Administration. If administration of the estate of a deceased nonresident has been granted in accordance with the laws of the state or country where he resided at the time of his death, the person to whom it has*165 been committed may, upon his application and upon qualifying in the manner required of nonresident executors, b.e appointed to administer upon the property of the deceased in this state, unless another had been previously appointed; but the original letters or other authority 'conferring his power upon such administrator, or an attested copy thereof, must be filed and recorded with the clerk of the proper court, and a bond, with resident sureties, given in such an amount as the court shall prescribe conditioned for the payment of all claims allowed to residents of the state and the payment of all legacies and distributive shares coming to such residents, so far as the assets thereof shall extend, before such appointment can be made. In such eases, the court or judge may require payment of all claims filed and allowed or proved belonging to residents of this state, and of all legacies or distributive shares payable to such residents, before allowing the estate to be removed from the state.
Under this section an administrator of a nonresident decedent, may be appointed to administer property in this state. As such he may sue and be sued. If an administrator were appointed in this state other than the foreign administrator, who, then, could maintain this action? Could the foreign administrator maintain it to the exclusion of the local administrator? In such case, which would be the “personal representative” of the decedent in Iowa within the meaning of the Illinois statute? We propound these questions to ourselves lest we open the door to conflict of authority and jurisdiction, and lest we eliminate something from section 3306.
Whether a foreign administrator as a mere trustee may, as a matter of right, in any case, sue in our courts upon a cause of action arising outside of this state is an abstract question upon which the members of the court are not at the present-time wholly agreed. We are agreed, however, upon the concrete question before us. There was neither property nor creditors nor beneficiaries of the estate of the nonresident decedent in this state. No administration was taken out or claimed by any one. The cause of action sued on arose in
II. At the time of the submission of the ease to the jury, the plaintiff’s petition had no averment - that the decedent left widow or next of kin. It had been held by the Supreme Court of Illinois that such averment was essential to the statement of a cause of action. Foster v. St. Luke’s Hospital, 191 Ill. 94 (60 N. E. 803); Quincy v. Hood, 77 Ill. 69. The absence of such averment was made one ground of the motion in arrest. Thereupon the plaintiff by leave of the court amended the petition after verdict and made such averment to conform with the proofs. The fact itself appeared by undisputed evidence in the record. Thereupon the defendant amended its answer and pleaded that the plaintiff’s cause of action was barred under the Illinois statute before the filing of the amendment. As a part of its plea of the statute of limitations, the defendant set forth, as a part of the Illinois statute, the last sentence which appears in the-copy of the statute' hereinbefore set forth, and which we have included in brackets. Up to this point in the trial, the statute appeared in the record without this proviso. No further evidence was ever taken, and no further proof of -the statute was made in any form. Several questions confront us here. First, can such proviso be regarded as proved for the purpose of the plea
Looking at each of these questions briefly it may be noted that no proof was offered of the proviso of the Illinois statute upon which the plea of the statute of limitations was based. It is said by appellant that no opportunity of proof was given. An appropriate reply to this contention is that no opportunity was asked and no offer of proof was made.
The jurisdiction of our court having attached while the cause of action was valid and before the statute had run, the court must necessarily ascertain the rights of the parties under such statute in accordance with its own rules of pleading and procedure and not in accordance with those of the foreign jurisdiction. Johnson v. Railway Co., 91 Iowa, 248; Dorr Cattle Co. v. First National Bank, 127
The foregoing comprise the principal legal questions presented for our consideration. The defendant urges that the verdict was excessive. The record will not justify our interference on that ground. Some other minor questions are suggested, but we find no prejudicial error in the judgment of the district court, and it must therefore be Affirmed.