McBride v. Burlington, Cedar Rapids & Northern Railway Co. , 97 Iowa 91 ( 1896 )

Kinne, J.

I. This action is brought by plaintiff, as administratrix of the estate of John McBride, deceased, for the recovery of damages resulting from his death, which it is claimed was caused by the negligence of the defendant company. The petition is in four counts. The first count charges, in substance, that on August 14, 1888, plaintiff’s intestate, John McBride, who was also her husband, was in the employ of the defendant company as a section hand, and that, while engaged in the proper performance of his duties as such, he, with other employes of the defendant company, was propelling a hand car of defendant upon its track, and that said car “jumped” the track, and in falling said McBride was killed, by reason of the derailment of said car, and without fault on his part. That said car was not properly constructed, that it was out of repair and unfit for use, and that such condition was known to the defendant. That, by reason of its defective and dangerous condition, the injury resulted. That, intending to cheat and defraud plaintiff, and the heirs of said estate, defendant falsely and fraudulently represented to plaintiff that the death of John McBride resulted from an accident; that defendant was in no manner to blame; that said car was not defective or out of repair. That upon said McBride’s death, defendant caused said car to be removed to its shops, and its construction and identity to be so changed as to conceal the same. That plaintiff has been unable, by the exercise of due diligence, to acquire a knowledge of the facts; but the same have been concealed, actively and fraudulently, from her; nor did she learn them until within one year prior to the bringing of this action. That she believed and relied upon the representations made to her, and was deceived thereby. The second count is substantially the same as the first. The third count sets forth, the same facts, and claims damages, by reason of said fraud and deceit, in being deprived of her right of action. The fourth count is the same as the first, with the additional averment that, by reason of false and fraudulent representations of defendant, which were relied upon by plaintiff, she was induced to accept the sum of. two hundred and fifty dollars in settlement of her claim for the death of her husband. Defendant demurred to all of said counts, because the cause of action, if any, was barred by the statute of limitations, and tbe averments of fraud did not defeat the bar of the statute. The court sustained the demurrer, and, the plaintiff refusing to plead further, and electing to stand upon her petition, judgment was entered dismissing her petition, and for costs. She appeals.

II. Our statute provides that all actions founded on injuries to the person, whether based upon contract or tort, must be brought within two years after their causes accrue. Code, section 2529, paragraph 1. Unless, therefore, there is something, outside of the statute itself, which has prevented its running, this action is barred. The contention of appellant is, that the facts alleged bring this case within the rule laid down by this court in the case of District Township of Boomer v. French, 40 Iowa, 601, and subsequent cases. It was held in the case referred to that, “when a party against whom a cause of action ■ existed in favor of another, by fraud or'actual fraudulent concealment, prevented such other from obtaining a knowledge thereof, the statute of limitations would only commenee to run from the time the cause of action was discovered, or might by the use of diligence have been discovered.” This case, and others which we shall refer to, are, it is insisted, controlling in the case at bar. The French Case was one where the defendant; who was the duly-elected and acting treasurer of a school district, had- during his term of office received a large sum of money belonging to the district, which he appropriated to his own use, and upon a settlement with the district failed to account for. He had so kept his books, by means of false, fictitious, and fraudulent entries, and had practiced such concealments and misrepresentations, as to keep from the defendant’s knowledge the fact of the receipt of said money. It was held that the cause of action did not grow out of the fraud, but existed independent of it, and the doctrine above stated was established. In Bradford v. McCormick, 71 Iowa, 130 (32 N. W. Rep. 93), the action was to recover from the defendant, a justice of the peace, and the sureties on his official bond, money which he had collected in 1882. The action was begun in 1885, some two years after the term of office of the justice had expired. The charge was, that he had fraudulently concealed from the plaintiff the fact that he had collected said money, and that he had converted it to his own use. It appeared upon the trial that the justice had reported to plaintiff that no money had been paid him on the judgment owned by plaintiff, and it was held such a fraudulent concealment as prevented the running of the statute. In Wilder v. Secor, 72 Iowa, 161 (33 N. W. Rep. 448), the action was for the conversion of a draft sent for collection to defendants as attorneys. It appeared that the draft was sent to defendants to file as a claim against an estate. They filed the claim in their own name, and being indebted to the estate, settled with the administrator, and set off the amount of the claim against their indebtedness to the estate. The facts were not disclosed to plaintiff for more than five years, and the defendants led the plaintiff to believe that the claim was allowed in his name and would be paid him. It was held that the cause of action accrued when the conversion took place, but defendants had fraudulently concealed the facts, and hence the statute had not run. Carrier v. Railway Co., 79 Iowa, 86 (44 N. W. Rep. 203), and Cook v. Railway Co., 81 Iowa, 563 (46 N. W. Rep. 1080), involved substantially the same facts. They were actions for the recovery of overcharges for freight shipped, and it appeared that defendant charged and received for transporting plaintiff’s shipments a sum in excess of what was reasonable for the service rendered. The fraudulent concealment consisted in representing that the sums charged were the usual rates and the same rates that were charged all other shippers for the same service, which was untrue, and in fraudulently concealing from plaintiffs the fact that a less rate was charged other shippers for the same service. In all of these cases the cause of action existed independent of the fraud and concealment, but because of the concealment of the facts upon which the cause of action arose, it was held the actions were not barred by the statute. Now, in French’s Case the district had no knowledge within the period of limitations that the treasurer had received and converted the money. The same is true in Bradford’s Case and in Wilder’s Case. In the Railway cases all of the facts which would create a cause of action were concealed. We think these cases differ much from the one at bar. In the case at bar, what created a cause of action against defendant? Manifestly the cause of action, if any existed, arose when McBride was killed. ■ True it. is that negligence could not be predicated against the company from the fact alone that McBride was killed while in their employment. Now, we are asked by counsel to go further, and hold that, although some of the facts which go to make up or give a right to a cause of action are known, still, because some of. them are not made known or are concealed, therefore that is such a fraudulent concealment as will prevent the running of the statute. There was no concealment in this case of the fact that McBride was killed by the hand car; that he was so killed while in the defendant’s service. While it is true that one necessary ingredient of the cause of action — defendant’s negligence— was concealed, still, every other fact which went to constitute a cause of action was known to plaintiff. The body of the cause of action, if we may call it such — the killing of McBride while in defendant’s service — was never concealed. Now, if the defendant did not disclose to the plaintiff the particular facts as to how such accident, occurred, or if it asserted that his death was accidental and its hand car in good order, it is, at most, a concealment of evidence which might establish one element in a cause of action. We do not think the rule should be so extended. The demurrer was properly sustained. — Affirmed.