Sherman v. Western Stage Co.

24 Iowa 515

• Court: Supreme Court of Iowa
• Decided: May 16, 1868
• Status: Published

Opinion

Cole, J.

1. limitation, when it ' begins to ran: administrator, I. It was held by this court, in the case of Sherman v. The Western Stage Co. (22 Iowa, 556), that an action to recover damages for the death of a person, caused by the wrongful act of . . . another, .was an action for an injui’y to the person, and, under our statute of limitation (subdivision 1, section 2740 of Eevision) was. barred in two years.

The plaintiff’s counsel, not controverting that decision, contend, that this cause of action accrued not to the deceased, but after her death to her personal representative, and that, before the statute can run, there must exist a party to sue and a party to be sued, for, until then, a cause of action cannot be complete; and, therefore, the statute of limitation did not begin to run until the appointment of an administrator. Wernnan v. The Mohawk Ins. Co., 13 Wend. 268; Granger’s Admr. v. Granger, 6 Ohio, 35, and authorises cited in the note; see also authorities cited by appellee’s counsel in the argument. This proposition, as a general rule of law, may well be conceded • as may also the further one, that unless the statute has once commenced to run in the life-time of the party entitled, it does not commence until an administrator is appointed. Cases cited, supra.

The section of our statute under which this action is brought is as follows: “ Seo. 4111 (2501). When a wrongful act produces death, the perpetrator is civilly liable for the injury. The parties to the action shall be the same as though brought for a claim founded on contract against the wrong-doer and in favor of the estate of the deceased. And the sum recovered shall be disposed of in the same manner, except that when the deceased left a wife, child or parent surviving him, it shall not be liable for the payment of debts.” This is the whole of our statute upon the subject. It was enacted by our legislature after the English statute (9 & 10 Vict. ch. 93) and after the New York statute (Laws of 1847, p. 575, and Laws of 1849, p. 388) upon the same subject, and is much more concise and brief than either.

At the common law, if one person assaulted and beat another, the person so assaulted and beaten might have his action and recover damages therefor. But if the beating was so severe as to produce death, then the wrongdoer was exempt from liability to damages in a civil action. Our modern statutes, giving the right of action where the wrongful act produces death, have been, in the opinion of the writer, very evidently enacted to cure the manifest injustice of the common law rule. They do not, in my opinion, create a new cause of action, but simply remove the common law bar to a recovery where the wrongful act produces death. So that a wrong-doer is liable civilly for his wrongful act, whether such act is so moderate as that his victim survives, or so immoderate as that he dies. In the one case, the action is by the person injured by the wrongful act, and in the other it is by the personal representative of the injured person. In either case the basis or cause of action is the wrongful act of the defendant. The damages may be more in the one case than in the other, but in either, they are based upon the wrongful act from which they have resulted.

2. — injury, The rule is a general and well settled one, that where the act or omission causes a direct injury an action may be instantly maintained, and that the statute period begins to run from the time when the act was done, without regard to any actual damages or to any knowledge of the party injured. 2 Greenl. on Ev. § 433, and authorities cited; Redfield on Railways, § 172, sub-div. 8; Brown v. Jefferson Co., 16 Iowa, 339.

3_rule apphea. The wrongful act, omission or negligence complained of in this case was, I think, certainly completed and ended when the plaintiff’s intestate was thrown from the boat; and an action therefor might, in the language of Professor Greenleaf (Greenl. on Ev. § 433), have been “ instantly maintained.” The 'fact that the act or omission complained of, threw the intestate into an element, which by natural consequence produced death, does not make the act or omission a continuing one, any more than it would be continuing if it had superinduced a disease, which by like natural consequence resulted in death. The cause of action then accrued to the intestate, and was complete the instant she was thrown from the boat. In the very nature of the case this must be so. No action accrues to an administrator except such as arise after the death of the intestate. This cause of action arose, and all the damages for which plaintiff sues accrued before the right or title of an executor or administrator could arise. While there was a spark of life, there could be no administrator, and when that spark was extinguished, not only was the cause of action complete, but the right to the whole measure of damages had fully accrued. The administrator can maintain the action because the right of the intestate by force of our statute survives to, and devolves upon him, and not because the action accrued directly to him.

It is said by Davies, J., in delivering the opinion of the court in Whitford, Admr., v. The Panama R. R. Co. (23 N. Y. 476), “ The action which the law gave him was for the injuries to his person, and the statute contemplates, that no action can be maintained under it, but such as the deceased himself, if he had survived, could have maintained.” And Comstock, J., in his opinion in the case of Dibble v. The New York & Erie Railroad, in which the judges were equally divided, and re-argument was ordered, and which opinion is filed in and follows the opinion of Davies, J., in the case supra very forcibly says: “ But this legislation with us, however it may be elsewhere, is remedial and not creative. It adds no new definition to the category of actionable injuries, but it provides, that immunity to the offender shall no longer be the consequence of the death of him who is injured, if such death be occasioned by the wrongful act or neglect. No new cause of action is created by the legislature; but the cause which, by the rules of the common law, has become lapsed or lost by the decease of the person to whom it belonged, is continued and devolved upon his administrator, who takes it by representation, as he takes other personal estate and rights of the decedent. * * The statute recognizes but one cause of suit, and that is, the wrong done, irrespective of its consequences. The injured party may be maimed for life, or he may die in a moment, or in a year, as the result of the injury. These are circumstances which may well influence the amount of compensation to be claimed; but the statute declares the wrongful act, etc., and that only to be the foundation of the suit. The common law afforded no civil remedy after the death of the party. The statute supplies that remedy by allowing his representative to maintain the action. * * * In the view of the statute, therefore, the right to be enforced is not an original one, springing into existence from the death of the intestate, but is one having a previous existence, with the incident of survivorship derived from the statute itself. The death may be sudden, in common language, instantaneous. But in every fatal casualty there nrast be a conceivable point of time, however minute, between the violence and the total extinction of life. That period may be a year, or it may be less than the shortest known division of time. During its continuance the right of compensation for the wrong belongs to the victim, and it is capable of devolution, like other rights, upon his representative. * * * * The true point of inquiry is, whether a wrong of this nature resulting in death, affords more than a single cause of action. If it does not, then the proposition becomes too plain for argument, that the right is wholly vested in the injured party until he dies, whether he survives the casualty a moment or a month. * * * *

I adopt this language of the learned judge as being a plain, logical and irresistible argument, if not judicial authority, in support of the proposition that, at least, where, as in this case, ten minutes, more or less, transpired before death, the cause of action accrued to the intestate, and survives, by force of the statute, to the administrator. Such being the case, it follows that the statute commenced to run in the life-time of the intestate, and, having begun to run, no subsequent disability or.death could suspend it. This action not having been brought until near four years after the cause thereof arose, is, in my opinion, barred by our statute of limitation, which limits the time for bringing actions for injuries to the person to tnoo years.

There' are, in my opinion, other considerations than those already mentioned which as irresistibly lead to the same conclusion. If it be held that our statute gives a right of action for the death instead of for the wrongful act, then it must follow that our statute creates a new right or cause of action, and is not simply remedial. And it would follow, also, that such new cause of action would, contrary to every legal principle heretofore recognized, have its basis upon damages instead of the wrongful act or negligence which produced them. And it would also follow that two causes of action, in favor of the same party in substance, might have their basis in the same wrongful act or neglect — one to the injured party himself, where he survived the injury sufficiently long to prosecute his action, and another, after he dies, to his personal representative, for his death, which resulted from the same wrongful act or neglect. And further than this, the injured party might maintain his action, recovering liberal damages, and survive the injury for years ; and yet, his death being finally, after five, ten or twenty years, produced by the injury, his personal representative, who may not be appointed till years

* after his death, may bring a new action for such death, and recover demages therefor. So that this new right of action, supposed to be conferred by our statute, would be beyond the reach of any statute of limitation. I cannot for a moment believe that our legislature intended to create any such new cause of action in violation of a clear legal principle, and exempt it practically from the operation of any statute of limitation.

I am aware that there is not a perfect agreement in the cases under the different statutes as to the precise nature of the cause or right of action conferred by them. (I subjoin, in the form of a note, the material parts of some of the statutes, so far as I have been able to procure them.*) The cases found in the boobs have not, perhaps, had sufficient regard for the different phraseology of the different statutes on which they are based, and it might well be said that the cases under the same statute are not agreed.

In the case of Gillard v. The Lancashire & Yorkshire Railway Co. (12 L. T. 356), cited in the case of Blake v. The Midland Railway Co. (18 Q. B. 93 [E. C. L. vol. 83] ), Pollock, Ch. B., says:

“ It is a pure question of pecuniary compensation, and nothing more, which is contemplated by the act (9 & 10 Viet. ch. 93). I think it is utterly impossible for a jury to estimate any sum as a compensation for the injured feelings of the survivors; all that is left which is appreciable after the death of the party killed, is the pecuniary-loss sustained by his family, and this act enables them to recover that which the deceased would himself have sued for had the accident not terminated fatally. The framers of the act never could have meant to give compensation to the parent for the mere deprivation of a son, or the widow for that of her husband.”

But in the case of Blake v. The Midland Railway Co. (83 E. C. L. 110, supra), it is said, that, “It will be evident, that this act does not transfer this right of action to his representative, but gives to the representative á, totally new right of action on different principles.” When we look to the language of the act itself, we find a very satisfactory basis for this view. By the second section of the act (9 & 10 Vict. ch. 93) it will be seen, that the right of action is not given to the personal representative for the benefit of the estate, but the action is “for the benefit of the wife, husband, parent and child,” and the “ executor or administrator of the party deceased, is a mere nominal party, who sues for the benefit of the parties named in the act, and who ax-e severally to have damages proportioned to the injury resulting to each.”

To illustrate the application of the English act. Suppose the victim of the wrongful or negligent act of the defendaxxt left a wife, parent and child, who were each entitled to an annuity, in different amounts, dependent upon the life of the deceased. Now, the recovery would be in the name of the executor or administrator, bxxt it would fix the amount going to each, and it would be proportioned to the amount of the x*espective annuities. The damages suffered by the estate of the deceased would have nothing to do with the amount of recovery. The measure of the damages would be the pecuniary “ injury resulting from such death to the parties respectively for whom and for whose benefit such action was brought.”

Not so, under our statute (Rev. § 4111, supra), for it gives the action “ in favor of the estaté of the deceased, and the sum recovered shall be disposed of in the same manner as though the action was brought for a claim founded on contract; ” except in certain cases it is exempt from liability for debts of the deceased. Now, it is tolerably clear that under our statute no recovery could be had for an annuity to the wife or child for the life of the deceased, but only for “ the injury” to “ the estate of^the deceased.”

Having in view the precise language and purpose of the English act, it is not strange that in the case of Pyne v. The G. N. Railway Co., 116 E. C. L. 396, when the counsel quoted the language of Pollock, Ch. B., in Gilland v. The L. & Y. Railway Co. (supra), that learned judge interrupted him with the remark that “I am not now prepared to say, that what is there imputed to me is correct law, namely, that the statute enables the family to recover that which the deceased would himself have sued for, had the accident not terminated fatally; probably the ease of a tenant for life of a large landed property was not within my contemplation. I agree, however, in the doctrine, that the damages must be given for pecuniary loss alone.” The precise question before the court in the case last cited, and in which Pollock, Ch. B., made the foregoing remark, was whether the widow and children of the deceased had such a pecuniary interest in his life as would entitle the executor to maintain the action.

The distinction between the statutes of New York, Pennsylvania, and others found in our note will be readily seen by their reading.

It is proper for me here to state, that what is said in the first paragraph of the opinion of this court in Donaldson, Admr., v. The M. &. M. Railroad Co., 18 Iowa, 280, as to the right to maintain any action under our statute which 'could be maintained under the English, New York, or other statutes, has reference as is clearly apparent from the language itself, to the character of the act producing the death ; that is, that the “ wrongful act ” of our statute was used to express the same idea as the “ wrongful act, neglect or default ” of the other statutes.

The fact that our statute gives the right of action, to the estate of the deceased, and not to individuals or classes, as do the English and Pennsylvania statutes, adds much to the basis of my view, that it simply intended to remove the unjust and odious common law theory, that, where a wrongful act produced death the civil right was absorbed or lost in the public wrong; in other words, to declare, that the magnitude and fatal consequences of the wrongful act should not afford immunity to any extent to the wrong-doer.

The death in this case was not produced till ten minutes, more or less, after the wrongful act. During this time the right of action existed in the victim of the wrong. Where the right of action once attaches the statute of limitation begins to run. It is the right of action, which fixes the time at which the statute begins, and not the knowledge of the party as to such right of action, nor the physical ability to bring the action at that moment. When the wrongful act is done, action, in the language of Mr. Greenleaf (supra), may be “instantly maintained,” and from that “ instant ” the statute begins to run. I think a legal and complete right of action accrued to the deceased in her life-time, and that such right, upon her death, passed to her personal representative, and that such representative had, under our statute, two years from the wrongful act in which to bring his suit, and not having brought it withih that time, it is barred and he cannot recover. It will be seen by reference to the statutes quoted in the note, that actions thereunder are barred after two years from the death, regardless of when an administrator is appointed.

Weight, J., without committing himselt to any of the reasoning of the foregoing, and without denying that, if the deceased had survived the wrongful act for days instead of minutes, the statute might have begun to run, holds, that the death in this case comes within what is generally rightfully and legally understood as an “ instantaneous death,” and that therefore no action did accrue to the deceased in her life-time, and that the statute of limitation did not then begin to run.

Dillon, Ch. J., is inclined to the opinion, that our statute creates and gives a right of action for the injury resulting from the death, and that, regardless of the time between the wrongful act and the death, and as a consequence, that the statute did not begin to run until the administrator was appointed, and this action is not barred; but without fully committing himself to this view, he holds, that in this case the interval of time between the injury and the death was so brief as that the statute did not begin to run in the life-time of the deceased, nor after her death, until the appointment of an administrator. He is of opinion, therefore, that the plea of the statute of limitation is not available to the defendants.

4 _statute commonlaw rillos' We are agreed in holding, that the provisions of our statute quoted infra do not affect the common law rules construing statutes of limitation. Those rules are: First, that the statute begins to run from the time the cause of action accrues; second, that if the statute once begins to run, no subsequent disability will suspend it, unless the statute itself provide therefor; and, third, that before a cause of action accrues or the statute can begin to run, there must exist a cause of action and a person authorized to prosecute it, as, for instance, where a cause of action accrues to the estate of a deceased person, the statute will not commence to run until there is a personal representative in whose name it may be prosecuted. Our statute, relied upon to take this case out of the operation of the last rule, is as follows: “ Sec. 2748 (1667). If the person entitled to a cause of action die within one year next previous to the expiration of the limitation above provided for, the limitation above mentioned shall not apply until one year after such death.” We agree that this section does not affect the rules of construction as applied to this case.

The holding of the District Court that this cause of action was not barred by the statute of limitation is, therefore, affirmed.

5. new tkiai. : conflicting evidence. II. The second point made by appellant’s counsel is, that the person in charge of the skiff was not the servant or employee of the defendant so as to render the defendant liable for his acts or negligence.

This is a mixed question of law and fact. The evidence in relation to it was to a considerable extent conflicting, and much of it was made up of circumstances. As a question of fact, it was not only legitimately but peculiarly within the province of the jury to determine. The court having given the law properly to the jury, so far as it bears upon this point, their verdict becomes binding upon us and conclusive of the question.; although, for myself, I confess that I see no sufficient reason for refusing instructions numbers one and two, asked by defendant upon this subject, and would have been better satisfied if they had been given.

6. neglisenoe: torts: mutual negligence, III. The third and main point relied upon by the appellant’s counsel is, that the conduct of the deceased contributed directly to the accident and her consequent death. I his is the fact proposition upon which the appellant relies. If it is true, as claimed by them, that the conduct of the deceased did contribute directly to the accident and her consequent death, then, in my opinion, the plaintiff cannot recover. Whether her conduct did so contribute to the accident, was a question of fact for the jury to find, and upon which there was conflicting, if not irreconcilable, testimony. It becomes necessary to examine the instructions or law, as given, and refused to be given, to the jury, by the court, upon this question. The case is an important one, both in its principles and magnitude of amount involved; and, since every part of the instructions has undergone elaborate criticism and defense in the argument of the case, I give them entire, as they are found in the transcript, in the form of a note,* in order to save space in the reports.

The refusal to give the same were severally and duly excepted to by the defendant.

It has been decided by this court, “ that a plaintiff cannot recover for an injury resulting from the negligence of the defendant, if, notwithstanding such negligenoe he might have avoided the injury by the exercise of care and prudence on his part, or, if his own want of such care and prudence, or that of the party injured, in any way contributed directly to the injury.” Or, in other words, “ where there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained.” Haley v. The C. & N. W. Railway Co., 21 Iowa, 15; see, also, The State of Maryland, for use, etc., v. The B. & O. Railroad Co., and the note thereto, and authorities cited by Judge Redeield in May No., 1866, vol. 5, U. S. Am. Law Reg. p. 397; see also Donaldson v. The M. & M. Railroad Co., 18 Iowa, 280; McAunich v. The M. & M. Railroad Co., 20 id. 338; Redfield on Railways, 330 et seq. In tbe ease last cited, it is stated “ as a general rule of law, that no one can recover for an injury of which his own negligence was in whole or in part the proximate cause.”

The seventh instruction, asked by the defendant and refused by the court, contained this general rule of law in plain, comprehensive and straightforward language, as follows: “ That if the conduct or negligence of the plaintiff’s intestate occasioned or contributed directly to the upsetting of the boat, by which the injury complained of resulted to her, the plaintiff cannot recover in this action.” See also the seventeenth instruction refused, as to mutual negligence, which clearly embodies the true and settled rule on that subject. There was evidence before the jury, as shown by the transcript before us, upon which to base the instruction, and in' my opinion it was a plain and palpable error to refuse to give it to the jury. It should have been given; and it will ■be seen by reference to the instructions, all of which are contained in our note, that no instruction was given embodying the sanie principle.

The only instruction in which approximation to this general rule is made, is the twelfth instruction in chief, at its close; the. closing sentence is as follows: “And if you are satisfied that such conduct and action on the part of the deceased caused the accident and was the occasion of.the boat dipping, and filling with water and producing the injury, then the plaintiff cannot recover.’/ Leaving out of view for the present the previous portions of that twelfth instruction, which tend to aggravate rather than palliate the error embodied in its closing paragraph, let us see how nearly this approximates, or rather fails to approximate, the general rule as stated. It is sufficient to defeat a recovery under the rule, that the conduct of the plaintiff contributed directly to the injury. But under the instruction as given, in order to defeat a recovery, the jury must be “satisfied that such conduct and action on the part of the deceased ccmsed the accident, and was the occasion of the ” injury. The difference is too manifest to require illustration. A party may contribute directly to an injury without causing it; or, one may contribute to a result without being the occasion of it. The difference is just that between a part and the whole. The whole is greater than any part. The court, in effect, told the jury that if the plaintiff’s intestate was the whole cause of the injury, then plaintiff could not recover. But refused to tell them that if she was in part the cause, the plaintiff could not recover. The latter is the true and .general rule, .and should have .been given. That the “greater includes the less,” may be as true in law as in mathematics; but the difficulty in its application to this point in the instructions is, that by showing “ the. less,” the defendant would be entitled to the verdict; whereas the court required the defendant to show “the greater.” Of course, if it should appear that the plaintiff’s intestate caused the injury, then plaintiff could not recover. The twelfth instruction was correct so far, and in its last paragraph embodied the sixteenth instruction as asked by defendant and refused; but the defendant also had the right, in my opinion, to have the general rule, as embodied in the seventh and seventeenth instructions, also given, and the refusal of these was error to defendants’ prejudice.

One other part of the twelfth instruction in chief requires notice. It is the first part of it, where the jury are told that if they “find that Jacques’ son was the agent of the defendant, as explained in the foregoing instructions, then, although the defendant may have been guilty of negligence, the plaintiff cannot recover in this action, if the deceased so far contributed to the accident by the want of ordinary care, that but for the want of such ordinary care on her part, the accident would not have happened.” The substance of this in plain English is, that if the deceased so contributed to the accident, that but for her conduct it would not have happened; or, in other words, if she caused the accident, the plaintiff cannot recover. Of course, the plaintiff could not recover if his intestate caused the accident. But we have just seen that the general rule recognized and applied by all the courts, does not require, in order to defeat a recovery, that the deceased should have so contributed as to produce or cause the accident, but only that she should have contributed directly, not wholly, but partially — mutually with the defendant — to produce it. In substance, then, the twelfth instruction begins and ends with directions to the jury that the plaintiff can recover, unless his intestate caused the accident and injury — a doctrine without foundation either in principle or precedent. The instruction is nearly three pages of manuscript, and consists much in an argument tending to show, that since deceased was a female, she might have involuntarily caused the accident without being liable to the charge of want of ordinary care.

I am aware that language not materially dissimilar to a portion of that contained in the first paragraph of the twelfth instruction, is found in the opinion of the court in the case of Scott v. Dublin and Wicklow Railway Co. (11 Ir. Com. Law, 377, cited and quoted in the case of Donaldson v. The M. and M. R. R. Co., 18 Iowa, 280). The entire rule as given in 11 Irish Common Law, which, when taken together, is very different from the part of the one sentence, embraced in the instruction under consideration, was stated in 18 Iowa (supra) to have the merit of much fairness, whatever might be the difficulty in its application. The rule, however, was not approved or sanctioned in that case as sound law, or as capable of practical application, but only as having the merit of abstract fairness. The rule is as follows: “Nor can he (plaintiff) recover, notwithstanding there is negligence on the part of the defendant, if he has so far contributed to the accident by the want of ordinary care, that but for that the accident would not have happened; but though the plaintiff has so contributed to the accident, he is not disentitled to recover, if the defendant might, by ordinary care, have avoided the consequences of the plaintiff’s neglect; and when, but for plaintiff’s negligence at the time, he might have escaped the consequences of the defendant’s negligence, he cannot recover.” This last part of the rule, which might have afforded in this case an antidote to the bane of the first part,.is entirely omitted from the instruction under consideration.

Apply the entire rule to this case and we have this: Plaintiff cannot recover notwithstanding the defendant had an insufficient boat and careless oarsman, if the deceased by her movements caused the boat to tip over; but, though deceased did cause the boat to tip over, plaintiff may yet recover, if the defendant by ordinary care might have prevented it or have rescued deceased from the water and saved her life; and if the deceased, by sitting still, might have passed over safely, even in the insufficient boat with the careless oarsman, then plaintiff cannot recover. Prom this it will be seen that the rule, although entire and one, nevertheless has three branches. The District Court embodied the first branch in the twelfth instruction and omitted the balance. Even if the rule itself had the approval of this court, it would afford no ground for sanctioning the first part given by itself, as in the instruction under consideration.

But the American and English rule as before and herein stated, in its practical application effectuates substantial justice, and with it we are content. The difficulty and uncertainty in the application of the rule as given in the Irish common law report, cit.ed above, would probably outweigh any supposed advantage to result from its abstract or apparent fairness.

If the court had given to the jury the seventh and seventeenth instructions as asked by defendant, it would have covered the whole ground and left the questions of fact with the jury, with whom, in my view, they should all have been left in this ease, as in every other. The instructions as given, do not go to the extent of the rule as heretofore settled by this court and recognized by all 'courts as a general rule.

7. — paramount negligeuoe. * Dillon, Ch. J., and Wright, J., do not concur in the foregoing views as to the instructions upon the subject of negligence. In their view, and thereby by a majority of the court, it is held: That the general rule upon the subject of negligence as heretofore laid down by this court, and hereinbefore stated, is the true rule of law applicable to cases involving the question. But that in this case, the defendant by placing the plaintiff’s intestate in the skiff, under the circumstances disclosed by the testimony, cannot avail itself of the imputed want of care, negligence or conduct on her part while in the skiff, to defeat a recovery for the injury resulting from the defendant’s primary and paramount negligence in causing her to be put therein.

In the opinion of the majority, the instructions as given by the court,- .when taken as a whole and together, gave to the jury the correct rules of law as applicable to the facts of the case; and in this holding, the fact that the last part of the twelfth instruction as given by the court, is precisely the same as the sixteenth instruction as asked by defendant, has no little weight and bearing. And without laying down any general rule, the instructions as given in this ease are affirmed on the ground of their applicability to the particular facts as developed by the testimony.

8. damages: death from ill-jury: action, Upon the subject of the measure of damages, the District Court was, in the opinion of this court, led into an error of phraseology at least, in the fourteenth . . . . instruction m chief, near the middle of the ■instruction ; the court tells the jury that they “ are not •limited to the loss sustained at the time of her decease, nor to such losses as have occurred up to this time, but you should also include prospective losses, provided they are such as you believe from the evidence vrill fairly and reasonably result to the next of kin from her death.” See also the second instruction asked by defendant and given. Under our statute the right of action is in favor of, and the damages recovered accrue to the estate of the deceased, and the rights of the next of kin, or the damages resulting to them are not to be considered or compensated for in this action. Under the English law, as well as under the amended Pennsylvania and New York statutes, the damages recovered accrue to certain next of kin to the deceased; and under those laws, the instruction would doubtless have been strictly correct. But under our statute it is not proper to direct the jury or permit them, in estimating damages, to take into consideration either past or prospective losses fairly or reasonably resulting to the next of kin, from the death of the deceased. It is simply the pecuniary loss to the estate. But by reference to the whole instruction it will be seen, that it has reference in its general scope and phraseology to the damage resulting to the estate, and that is its leading and controlling thought, notwithstanding the use of the words italicised above.

ry damages. The District Court also instructed the jury, that if the defendant’s drivers were drunken men, and that fact was to defendant, and their drunkenness cause(j the injury, then they would be justified in giving exemplary damages. (See instructions in chief No. 15 and 16, and No. 11 and 12, asked by defendant and refused.) In our view, it is not necessary for us to decide whether exemplary damages are, or not, within the scope and purpose of our statute giving this action; or whether it was intended to afford pecuniary compensation only, for the injury resulting to the estate from the death. We have not been directed by counsel to any case, nor have we seen one in which exemplary damages have been awarded, in an action brought for the death, and none of the cases, so far as we have examined, directly and expressly hold, that such damages cannot be recovered. This opinion is already too much extended to allow us to do more than simply cite a few of the cases bearing upon the subject. Canning v. Williamstown, 1 Cush. 451; Morse v. Auburn & Syracuse Railway Co., 10 Barb. 621; Penn. Railway v. McCloskey, 23 Penn. St. 526; Oakland Railway Co. v. Fielding, 48 id. 320; Worth Penn. R. R. Co. v. Robinson, 44 id. 175; The State of Maryland for use, etc. v. The B. & O. R. R. Co., 5 Am. Law Reg. (N. S.) 397 (May, 1866); Dalton v. South Eastern Railway Co., 4 C. B. (N. S.) 296; Franklin v. South Eastern Railway Co., 3 H.& N. 211; Blake v. Midland Railway Co., 18, 2 B. 93 (S. C., 83 E. C. L. & E. 93). See also Judge Redfield’s note to the case of The State of Maryland v. The B. & O. R. R. Co., 5 Am. Law Reg. (N. S.) 397; and see (semi contra) The Penn. R. R. v. Lyebe, 33 Penn. St. 330.

10. — oxeesremittitur. We do not deem it necessary to discuss the question of damages further; nor to decide whether exemplary damages may, or may not, be given in such an action as this, tor we have determined, m view of what has already been said, and of all the circumstances of this case, and pursuant to an offer by plaintiff’s counsel to remit any portion of the judgment deemed excessive, to require plaintiff to remit all of the judgment except five thousand dollars, and to accept a judgment now for five thousand dollars, or in default. thereof, the judgment of the District Court will be reversed and cause remanded for trial de novo. In either event the plaintiff will pay the costs of this appeal.

Affirmed as modified.

Our statute limits it to five years.

Stat. 9 & 10 Viet. c. 93 (1864), entitled, “An act for compensating the families of persons killed by accident,” after reciting, in section 1, that “no action at law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him,” enacts: “That whensoever 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 case, the person who 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 for the benefit of the wife, husband,, parent and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. The amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct.”

The Ohio statute, passed March 25,1851, is as follows:

“Sec. 1. Be it enacted by the General Assembly of the State of Ohio, that 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 case the person who, or the 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 murder in the first or second degree, or manslaughter.

“Sec, 2. Every such action shall be brought by or in the name of the personal representatives of such deceased persons, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased 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 estates left by persons dying intestate; and in everj'' such action the jury may give such damages as they shall deem fair and just, not exceeding five thousand dollars, with reference to the pecuniary injury resulting from such death to the wife and next of kin to such deceased person; provided that every such action shall be commenced within two years after the death of such deceased person.” 2 Rev. Stat. (Ohio) 1140.

The Illinois statute was passed February 12, 1853, and is a copy of the Ohio statute, supra, 1 Stat. of Ill. (1858) 422.

The Kansas statute was passed February 8,1859, and is the same as the Ohio statute, except that the recovery is limited to teu thousand dollars instead of five, and the words “with reference to the pecuniary injury resulting from such death to the wife and next of kin to such person, deceased,” immediately preceding the word “ provided, are omitted.”

The Pennsylvania statute was passed April 15, 1851, “that whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.” Dunlop’s Laws of Penn. (1700-1853) 1Z45.

“Connecticut statute, act of 1S48, is as follows, viz.: Actions for injury to the person, whether such injury result in death or not, shall survive to the executor or administrator, provided not more than one year elapse between the injury and death, and provided also the cause of action shall have accrued subsequently to June 27,1848.”

In chief by the cotxbt : “ Gentlemen of the jury: Without giving a statement in full of the claim made by plaintiff, and the defense thereto, I will endeavor to give you the rules of law as applicable to the material questions in the case and refer you to the petition and answer, which you will have with you during your retirement, and which you will consider in connection with these instructions.

2. The defendant is sued as an incorporation, and the answer admits that it is a corporation; you will therefore not stop to consider the question.

3. The defendant also admits, that at the time of the alleged accident it was running a line of coaches and vehicles for the transportation of freight and passengers over the route from Des Moines, in Folk county, through Boone county to Fort Dodge, in the county of Webster, for a compensation.

4. Defendant also admits, that the said Terzah Sherman traveled on said defendant’s coaches on the trip in question, hut alleges, that she traveled on said trip free and without any cost or charge whatever.

5. If you find from the evidence that the said Terzah Sherman was traveling on said trip as a passenger, and there is no evidence that she was traveling free, the right of her estate for damages in this case, if entitled to any, is the same as though it were affirmatively shown, that she paid, or was to pay, her passage.

6. The defendant alleges and claims, that the alleged cause of action did not accrue within two years before the commencement of this action, but that it accrued, if at all, about four years before such commencement, and that the alleged claim of plaintiff is barred by the statute of limitations. If you find from the testimony, that the said Terzah Sherman perished immediately at the time of the accident, and that no letters of administration were granted and issued upon her estate until within two years next preceding the commencement of this action, then this action is not barred by the statute of limitations.

7. The defendant denies that it was, as such company, or otherwise, at the time of the alleged accident, engaged in running a boat or boats on or over the route in question.

8. If you find from the evidence, that the defendant was running a line of vehicles for carrying passengers throughout the whole route from Des Moines to Fort Dodge, and that said route crossed the Boone river at the place where the accident occurred, the defendant was bound by their contract as carriers to transport their passengers over said river as over other parts of said route, and if the evidence shows you, that at times when said stream could not be crossed by driving their coaches and vehicles through the same, the defendant had their passengers taken over in a boat or skiff of Jacques, and paid him for his services in that behalf, or whether they paid him or not, then the person who rowed or managed the boat was the agent and servant of the defendant for the purpose of this action, and the defendant is bound for his want of skill.and negligence, if any, the same as if in the regular employ of defendant; and if the boat or skiff was thus used, the defendant is liable for its want of capacity and unfitness, if any, to the same extent as though defendant owned the skiff or boat.

9. If you find from the evidence, that the young man, Jacques, undertook to transport the passengers over the river in the skiff for the defendant, as explained in the last above instruction, the defendant, its agents and servants were bound to exert the highest diligence, the utmost care and vigilance to secure the safety of deceased, and you will hold the defendant responsible for the slightest negligence.

10. If the defendant conveyed passengers throughout the whole line as aforesaid, it was bound to provide a safe and secure method of transportation throughout the whole distance, and nothing can exempt it from this responsibility except the existence of some concealed defect, which no reasonable degree of human skill and foresight could guard against; and if it appears to you from the evidence, that the said Terzah Sherman's death was caused by the smallness or overloading of the skiff, or the unskillfulness of the young man that rowed the boat, then a strong presumption of negligence arises. If you find that the company had its passengers transported over the river, as aforesaid, the defendant was bound to see that the boat and all its apparatus and appointments were safe 'and sufficient, the rower skillful and experienced, and that every tiling appertaining thereto, was in as perfect order as the utmost vigilance, care and skill could make it.

11. The negligence of the stage drivers or the person directing and managing the boat, is the negligence of the defendant itself; and if the fact be proved, that this life was lost on the line of the defendant while being carried as a passenger by the defendant, it is sufficient prima facie to establish the liability of the defendant, unless explained and rebutted by the attendant circumstances; but this prima facie liability, if any, may be rebutted by evidence, that the defendant was not negligent and careless within the rule above stated, and if you find from the evidence, that the defendant’s servants and agents did use the utmost care and skill, and that said boat was in all respects safe and fit. for the purposes of crossing said stream with passengers and was not overloaded, and that the accident did not occur through any negligence whatever of defendant’s agents or servants, then the defendant Is not liable, and your verdict will be accordingly.

12. It Is insisted by the defendant, that the intestate's life was lost by her own negligence; and if you And that Jacques’ son was the agent of the defendant, as explained in the foregoing instructions, then, although the defendant may have been guilty of negligence, the plaintiff cannot recover in this action, if the deceased so far contributed to the accident by the want of ordinary care, that but for the want of such ordinary care on her part the accident would not have happened. The rule is, that she must have exercised ordinary care while crossing the river in the skiff; that she should conduct herself as a woman of ordinary care and prudence usually conducts herself in like circumstances. The law did not require that she should use extreme care and caution and vigilance more than women of average prudence exercise in such eases. If you find there was sudden and impending danger, that might excuse error of judgment or failure in coolness and self-possession. If you find from the evidence, that the defendant’s driver, Clarkey, directed her to take her seat on the trunk, or if you find, that she was not required by any one to take her seat elsewhere, or if no order or direction was given to her as to her seat, and a woman of ordinary prudence would have seated herself as she did, then, if the accident did occur or was contributed to by her being seated on the trunk, then you cannot fairly presume, that her act in taking her seat was negligence or want of ordinary care on her part, and if, being thus seated, her movement to one side of the skiff was involuntary, and could not reasonably have been prevented by her, then you cannot fairly infer, that that act was a want of ordinary care on her part.

On the other hand, if you believe from the testimony, that the person in charge of the skiff at the time of the injury complained of, at the point of time when the deceased got into the skiff, requested her to take a seat low down in the boat, and that there was a seat there for her to take, and she refused or neglected to do so, but seated herself on top of a high trunk with her child in her arms, and when the boat in its passage over the river struck the current, she moved or got to one side of the boat, and that act caused the boat to dip the water, and finally to go down, so that she floated out into the stream and was drowned; her disobedience of the direction of Jacques to take the seat that he directed (if he did direct her), and her movements from one side of the boat to the other, then these facts, if you believe they have been proved, should be considered by you in determining the question of negligence by the deceased; and if you are satisfied that such conduct and action on the part of the deceased caused the accident, and was the occasion of the boat dipping and filling with water, and producing the injury, the plaintiff cannot recover.

13. You are the sole judges of the facts and the weight of evidence, and if you believe, from all the facts and circumstances disclosed by the testimony, that the plaintiff should recover, a material inquiry will be what is the true rule for the measure of damages.

14. If you find for the plaintiff, you will find such damages as her estate suffered in a pecuniary way by her death; you should not allow any thing on account of .the pain, mental anguish and suffering of the deceased at the time of her death, or for the grief and distress of her friends on account of her death or for the loss of her society; but in making your estimate, it is proper for you to take into consideration the occupation of the deceased, her annual earnings, her health, age, habits, family and estate, and taking all these facts into consideration, give such damages as in your judgment will compensate her estate; and you are not limited to the loss sustained at the time of her decease, nor to such losses as have accrued up to this time, but you should also include prospective losses, provided they are such as you believe from the evidence will fairly and reasonably result to the next of kin from her death; and it is proper for you in this connection t-o take into consideration the probable length of life of deceased if she had not been drowned by the accident, and you are not to make any deduction for the reason that her husband has again married. In short, you are to take all the facts and circumstances disclosed by the testimony, and give such damages as will cover the pecuniary loss, such as in your sound judgment satisfies you have and would hereafter naturally and proximately result from her death.

15. The plaintiff insists that he is entitled to exemplary damages. If you find from the evidence that the plaintiff should recover; that the drivers, Clarlcey and Pennypacker, were at and before the accident addicted to drunkenness, and you further find that the managing agent of the defendant, who had authority to discharge the drivers, knew of the drunken habits of said drivers before the accident, and you further find that they were persent at said accident and were drunk at that time, and that by reason of their drunkenness the deceased was drowned, you are then justified in giving exemplary damages; but if you do not find all these facts to be true, you will confine yourself to the pecuniary loss aforesaid.

16. Exemplary damages are damages over and above the loss sustained, and are intended for the double purpose of punishing the defendant and as an example to others to abstain from like violations of law.

17. You should decide this case precisely the same as though the controversy was between two individals; stage companies being held to no more strict diligence than a private individual engaged in the carrying of passengers for hire; and the mere fact that defendant is a stage company will not authorize or justify you in requiring greater or other proof in its defense than if the suit were between private individuals.

The court then gave to the jury the following instructions at the request of the plaintiff, to wit:

1. The defendant having admitted, that it was a common carrier (for a reward) of passengers in its coaches at the date in question, and the defendant having affirmatively averred that the deceased paid no passage money, if it shall appear to you that the deceased was an ordinary passenger, taking passage on the usual terms and conditions, then that makes a prima facie case for plaintiff and throws the burden of proof upon the defendant to show that no fare was paid.

2. It is not lawful for this jury if they find for the plaintiff to cast lots for the amount of their verdict, and agree to be bound by the result; the law does not favor such a method of arriving at a verdict.

3. Nor is it lawful for each juror to mark the sum he himself favors, and divide the sum of such verdict by the number of jurors and agree to be bound by the result.

4. By this it is simply intended to instruct you not to agree beforehand to be bound by a result not definitely ascertained; if you see fit to experiment and afterward decide, it is not illegal so to do.

The giving of the foregoing instructions were each properly excepted to by the defendant at the time.

The court then gave to the jury the following instructions at the request of the defendant, to wit:

1. The gist, basis and foundation of this action*is, the negligence or malfeasance of the defendants or their servants, and unless the jury find that the negligence or breach of duty complained of was committed by the defendants or their servants, the action cannot be maintained. ,

2. That the number and circumstances of the next of kin of the plaintiff’s intestate, or of the distributions of her estate under the law, cannot be considered or made an element in the verdict of the jury.

The defendant asked the court to give to the jury the following instructions, which the court refused, to wit:

1. If the jury find that the defendants were the proprietors of a line of stage coaches over the route from Des Moines to Fort Dodge, and that intestate took passage in said coaches from Des Moines to Fort Dodge, and that on her arrival at Boone river, she undertook and attempted to cross said stream in a skiff, owned and run as a ferry by one Isaac Jacques, managed by himself or those he placed in charge thereof, the said Jacques having independent control of the same, and the said defendant having no interest therein, and no control over the persons using and running tho same, and by the carelessness of the persons in charge of the skiff the injury complained of happened to plaintiff’s intestate, such person having charge of the said skiff was not the servant of the defendant, and they are not liable for his acts and omissions.

2. That if the jury find from the evidence, that at the time of the injury complained of, one Isaac Jacques was the owner of the skiff-ferry across Boone river, and used it for ferrying indiscriminately stage passengers and other passengers and persons who desired to cross the stream, and run it himself, or employed persons to run it for him, and had the sole and independent control thereof, and that the defendants had no interest therein, and no charge of, or control over the same, nor over the son of the said Isaac Jacques who was running the same at the time of the injury to plaintiff’s intestate complained of, then the person whose negligence occasioned the injury was not the servant of the defendants, and they are not liable for his negligence or breach of duty.

8. That in cases of tort, the statute of limitations begins to run from the moment of the act or omission which causes the injury, and not from the time of the damage resulting therefrom; and if the intestate of plaintiff was not instantaneously killed, but survived the upsetting of the boat for a period of a few minutes only, then the cause of action was complete before her death, and the statutes of limitations began to run from the time of the act or negligence by which the skiff was overset, and in the life-time of the intestate; and, when the statute once begins to run, it is not suspended by any subsequent disability, but continues to run until the cause of action is barred.

4. In determining the question as to the liability of defendants for the injury occasioned by the upsetting of the skiff, the jury will consider whether the ferry and skiff were under the direction and control of the defendants or of Isaac Jacques, and whether said Isaac Jacques or the defendant employed the said Francis Jacques; and if the jury find that the said Isaac Jacques was the owner of the said ferry, and run the same as his own, and had control thereof independent of the defendants, and placed the said Francis Jacques in charge thereof, without any control of the defendants over him, and the injury to plaintiff’s intestate happened through the carelessness and negligence of said Francis Jacques, then the defendants are not liable for any negligence of said Francis Jacques, by which the boat was overset, and the intestate thereby injured and drowned.

5. Even if the jury find, that the Boone river might have been forded at the time of the injury to the plaintiff’s intestate complained of, and defendants neglected to ford it, and yet the injury to her occurred and happened by and through the negligence of Francis Jaques, who undertook to ferry her aci'oss the stream in a skiff, and the said Francis Jacques was not the servant of the defendants, then the defendants are not liable in this action.

6. That this action is not based or maintainable upon the implied contract which the law raises to safely carry and convey plaintiff’s intestate over the route from Des Moines to Fort Dodge, on her becoming a passenger in their coaches, but is based upon and can be maintained only for some omission, negligence or wrongful act of the defendants; and if the jury find, that the act of upsetting the boat, which produced the injury complained of, was not occasioned by the act or negligence of the defendants or their servants, but by the servants of another, then the defendants are not liable or responsible for the act which produced the injury.

7. That if the conduct or negligence of the plaintiff’s intestate occasioned or contributed directly to the upsetting of the boat by which the injury complained of resulted to her. the plaintiff cannot recover in thin action.

8. That if, on arriving at Boone river on the day of the accident or injury complained of, the plaintiff’s intestate undertook and attempted to cross the river where the injury occurred, in an unsafe and improper boat or skiff, not owned or run by the defendants, and overloaded by the persons running and having charge and control of the same, and under the charge and management of a person obviously too young and inexperienced to manage the boat, these facts may be considered by the jury in determining the question of negligence on the part of the intestate.

9. That in cases of carriers of passengers by stage coach over routes obstructed by streams and high water, and which have to be feri’ied, the implied contract which arises between them, the carrier and the passenger, is entered into and exists with reference to the high water and the modes provided for crossing the same,

10. If the jury find, that the plaintiff’s intestate took passage in the stage coaches of the defendants, to be carried from Des Moines to Fort Dodge, over the route between these places on which defendants ran their coaches under the implied contract safely and securely to carry and convey, and when she arrived at Boone river crossing, on the said route over which defendants’ coaches ran, the said river was so high that the passengers had to be ferried across, and on arriving at the stream, the driver of the defendants spoke to and employed one Jacques, who owned and run a skiff ferry across said river at that point, and had the entire management and independent control thereof, and of the persons running the same, to forry or carry the passengers, including intestate, over the river, and the intestate got into the skiff to be ferried across, and in crossing, by reason of the negligence of the said Jacques’ servant having the management of the skiff, the said skiff was upset and the injury complained of in this notion thereby ensued to the intestate, the defendants are not liable for the negligence of the person in charge of the skiff by which the boat was upset and the injury occasioned.

11. That exemplary damages cannot be recovered against the defendants in this action or actions of this description brought by the administrator of an intestate; that the damages are measured by the pecuniary worth and value of the life or probable life of the intestate to her estate.

12. That upon the facts disclosed in this action and the law applicable thereto, the plaintiff in this action cannot recover punitive or exemplary damages.

13. That the evidence given by the plaintiff’s witnesses tending to show, that there were sticks and poles on both sides of the Boone river near where the accident and injury complained of by plaintiff occurred, is immaterial, and the jury are instructed to disregard the same.

14. That all the evidence given by the plaintiff’s witnesses showing or tending to show the habits of the drivers, Clarkey and Elisha Pennypacker, and that they drank whisky and were intoxicated on other days than the day of the accident or injury to plaintiff’s intestate complained of, was and is immaterial and incompetent, and the jury are instructed to disregard the same.

15. That all the evidence given by the plaintiff’s witnesses showing or tending to show, that Boone river was fordable at the time of the accident or injury to plaintiff’s intestate complained of, is immaterial and incompetent, under the pleadings, and the jury are instructed to disregard the same.

16. That if the jury find, that the person in charge of the skiff at the time of the injury complained of, Francis Jaques, at the time plaintiff’s intestate got into the skiff, and after, requested her to take a seat lower down in the boat and she refused or neglected to do so, but seated herself on the top of a high trunk with her child in her arms, and when the boat, in its passage over the river struck the current she moved or got from one side of the boat to the other and by so doing caused the boat to dip the water and finally to go down so that she floated out into the water and was drowned, her disobedince of the directions of Jacques to take the seat he directed, and her movements from one side of the boat to the other, should be considered by the jury in determining the question of negligence by the intestate; and if the jury are satisfied, that such conduct and actions on the part of the intestate caused the accident and was the occasion of the boat dipping and filling with water and producing the injury, then plaintiff cannot recover.

17. If the jury believe, from the evidence, that there has in this case been mutual negligence on the part of plaintiff’s intestate and defendant, and the negligence of each party or of the plaintiff's intestate alone has been the proximate or immediate cause of the injury, the plaintiff cannot recover.

18. That in this case the burden of the proof is on the plaintiff and he must show affirmatively, by a preponderence of evidence, that the injury complained of happened through and by the negligence of the defendants or their servants and without fault or carelessness on the part of the intestate, Terzah Sherman, or he cannot recover.

19. That the jury cannot consider or make the fact, that the legal tender currency of the country is of a greater or less value in gold now than it was on the 24th day of April, 1862, an element in their verdict either to increase or diminish the amount of such verdict if they find for plaintiff.

20. If the jury believe, from the evidence, that the injury to the plaintiff’s intestate occurred on the 24th day of April, 1862, and that the cause of action accrued and became perfect on that day, and that letters of administration on the intestate’s estate were not granted nor applied for till March, 1866, and that no sufficient cause has been shown for such delay in taking out letters of administration, the cause of action was barred by the statute of limitations before the commencement of this suit, and the plaintiff cannot recover.

Beck, J., did not hear the arguments in the case, not being a member of the court at the time the cause was submitted, and hence took no part in its determination.