Major v. Burlington, Cedar Rapids & Northern Railway Co.
115 Iowa 309
Iowa
1902
Check Treatment
Ladd, C. J.

1 Can a widow maintain an action for damages resulting to her individually from the wrongful killing of her husband ? Were it not for the almost unbroken line of authority to the contrary, little difficulty, we apprehend, would be experienced in vindicating suqh right, a.t the pommon law, upon grounds suggested by many eminent jurists. See Sullivan v. Railroad Co., 3 Dill. 334 (Fed. Cas. No. 13,599); Opinion of Bramwell, B., in Osborn v. Gillet, L. R. 8 Exch. 93, sustained by an article by B. T. Box in 12 Central Law Journal, 464; James v. *311Christy, 18 Mo. 162; Cross v. Guthery, 2 Root, 90 (1 Am. Dec. 61) ; Ford v. Monroe, 20 Wend. 210; Plummer v. Webb, 1 Ware, 69 (Fed. Cas. No. 11,234). Nearly every decision attempting to accomplish this, however, has m.et the peculiar misfortune of being overruled. Thus the well-reasoned opinion of Judge Dillon in Sullivan v. Railroad Co., supra, was overturned in 1 McCrary, 301 (2 Fed. Rep. 447), following Mobile Life Ins. Co. v. Brame, 95 U. S. 754 (24 L. Ed. 580), wherein such liability was expressly denied. The right to maintain the action appears to have been assumed, rather than decided, in Ford v. Monroe and Cross v. Guthery, and was subsequently denied in the same state, on full consideration, in Green v. Railroad Co., *41 N. Y. 294, and Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265 (65 Am. Dec. 571). In the last case-the court said: “Should damages be demanded in right of the deceased for the injury to him, in the name of his representative, a right would clearly be claimed by the mere representative, which, from the nature of things, could never have inhered in the principal for one instant.of time. No contract, even, could be made recognizing such a right, and providing for a compensation for the loss of one’s life. The contract of insurance upon lives was tolerated, not on the ground that death was a proper subject of pecuniary remuneration, but as a mere wager, which might, if lawful, as .all wagers once were, depend as well upon the duration of life as upon any other contingency. Or if a suit should be brought to recover for the mental suffering, loss of society, comfort, support, and protection resulting from the death of another person, we should see at once — so intertwined is the web of human affectb--^ in terest, and relationship. — that the author of h> «aeath, however slight or accidental his default, woulct be responsible in numberless actions brought on behalf of wives, children, friends, brothers, sisters, and dependents of all degrees, to say nothing for the present of creditors; and for any injury *312of such incalculable extent writers on jurisprudence, perhaps without strict accuracy, have assigned the awful magnitude' of the wrong as the reason why neither court nor jury have ever be trusted by the law with the function of estimating it.” In Osborn v. Gillet, supra, nothwithstanding the able argument of Bramwell, B., in which he pointed out that Baker v. Bolton, 1 Camp. 493, — the case generally relied on,- — was only a nisi prius decision of Lord Ellenborough, the majority of the court held the action might not be maintained, stating that not in a single instance within the books or memory of man had such a liability been recognized in England. In some of the above cases stress is laid on the allowance of such a right in the civil law, but it is to be noted that this has been repeatedly denied, after exhaustive investigation, by the only tribunal administering the civil law in this country. Hubgh v. Railway Co., 6 La. Ann. 495 (54 Am. Dec. 565); Hermann v. Railway Co., 11 La. Ann. 5. Nor can such action be maintained in admiralty. The Harrisburg, 119 U. S. 199 (7 Sup. Ct. Rep. 140, 30 L. Ed. 358). This court declared in the early case of Donaldson v. Railroad Co., 18 Iowa, 283, that “at common law no right of action for the recovery of damages existed against one who had caused the death of another.” This was conceded to have been the rule in Conners v. Railway Co., 71 Iowa, 490, where it was said to have been based on two grounds: “That the right of civil remedy, when the wrongful act amounts to a felony, is merged in the public offense; and (2) that, the injury to the person being a personal tort, the right of action determines with his death.” The authorities are so uniform and numerous in denying the common-law liability for the instantaneous death of a • human being, that, as was remarked in Brame’s Case, “It is impossible to speak of it as a proposition open to question.” The decisions will be found collected in 8 Am. & Eng. Enc. Law, 855, and note to Carey v. Railroad Co., 48 Am. Dec. 616. This point was definitely de*313cided ip. Hyde v. Railway Co., 61 Iowa, 441, but, even were the question res integra in this court, we should feel constrained to yield to the overwhelming weight of authority denying the right to have existed.

2 *3148 *313II. It is insisted, however, that the statutes of Iowa have completely abrogated the common law rule; and it was so said in Conners v. Railway Co., 71 Iowa, 490. Section 3443 of the Code reads: “All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.” By section 3444 the right of civil remedy is no longer merged in the criminal offense. If, as said in the case last cited, these statutes abrogate the reasons for the common law rule, then possibly they carry with them the rule itself. But in connection with their enactment, creating a right which did not exist before, the legislature provided for the remedy in die section following: “Any action comtemplated in the two preceding sections may be brought, or the court on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the time it would have accrued to the deceased if he had survived.” From this it plainly appears that the cause of action contemplated in section 3443 is only one deemed “to 'have accrued to such representative or successor at the time it would have accrued to the deceased if he had survived.” It is such an one as he might have prosecuted had he lived. And it was so held in Mowry v. Chaney, 43 Iowa, 609, wherein a husband was denied the-right to maintain -an .action for damages resulting to him individually from the negligent killing of his wife; the court saying that “a right of action therefor exists only in favor of the administrator of her estate.” In Hyde v. Railway Co., 61 Iowa, 441, it was said that “a cause of action which survives only by statute must survive to the person or persons designated *314by statute.” Indeed, it seems to be the general rule that whenever a right is created by legislation, and at the same time a remedy is prescribed, such remedy is part of the right, and exclusive. Thus is was declared in Barker v. Railroad Co., 91 Mo. 86 (14 S. W. 281), that “in conferring the right of action, and in providing such remedy, in designating when and by whom suits may be brought, it was, as a matter of course, competent for the legislature to provide and impose such conditions as it might deem proper; and the conditions thus imposed modify and qualify the right of recovery, or form, rather, we think, a part of the right itself, and upon which its exercise depends.” To the same effect, see cases following, construing similar statutes: Stewart v. Railroad Co., 83 Ala. 493 (4 South. Rep. 373) ; Goodwin v. Nickerson, 17 R. I. 278 (23 Atl. Rep. 12) ; Usher v. Railroad Co., 126 Pa. St. 206 (17 Atl. Rep. 597, 4 L. R. A. 261, 12 Am. St. Rep. 863) ; Killian v. Railroad Co., 128 N. C. 261 (38 S. E. Rep. 873); Nash v. Tousley, 28 Minn. 5 (8 N. W. Rep. 875); Legg v. Britton, 64 Vt. 652 (24 Atl. Rep. 1016). Nothing in these statutes indicates a purpose a create a cause of action in favor of wife or -children, save as they may share in the distribution of the damages recovered, freed from any claim of creditors. See section 3313, Code. But appellant urges that as by section 2071 a railroad company is made liable “for all damages sustained by any person,” etc., she may recover. The purpose of that statute, as pointed out in Hunt v. Railroad Co., 26 Iowa, 366, was to relieve railroad employes from the fellow servant rule, and to enable them to recover for the negligence of a co-employee as for that of a principal. That such damages, in event of death, are recoverable only under the statutes mentioned, appears from Philo v. Railroad Co., 33 Iowa, 47. — Arrirmrd.