Appeal from the Circuit Court of Carroll County; the Hon.
JAMES E. BALES, Judge, presiding. Affirmed.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Plaintiff appeals from an order dismissing her complaint for wrongful death. The complaint alleges an action under the laws of Iowa. The order dismissing the complaint states that the right of action of the plaintiff is to be determined by reference to the law of Illinois rather than the law of Iowa.
The plaintiff urges procedural error as well as error in the determination of the applicable law.
The complaint contains four separate counts in which the plaintiff alleges the right to recover from the defendants for the death of Wayne Ingersoll, which occurred by drowning on January 12th, 1963, in the Mississippi River. Count I of the complaint alleges a violation of chapter 321.494 of the Iowa Code. *fn1 This count charges the defendant, Walter Robert Klein, with "reckless operation" of an automobile in driving on the ice on the surface of the Mississippi River, alleged to be frozen over and safe for driving, except where there were air pockets. It is further alleged that at a point near the Iowa bank of the river, the exact location of which is not known to the plaintiff, there was an air pocket under the ice which was known to the defendants.
A second count of the complaint charges the same defendant, Walter Robert Klein, with driving a vehicle under the influence of intoxicating liquor in violation of the same Iowa statute referred to in count I.
The third count of the complaint is directed against William C. Klein, the father of Walter Robert Klein, on the theory that he was liable for his son's acts causing the death. This count is based upon chapter 321.493 of the Iowa Code. *fn2
Count four of the complaint is also directed against the defendant, William C. Klein, and based upon allegations contained in other counts.
Defendants first filed an answer denying that Iowa law was applicable to the case and also filed interrogatories to be answered by the plaintiff. There was no further activity in the case until almost two years later when plaintiff filed a notice and motion to obtain leave to answer interrogatories and requesting that the court strike the answer of the defendants for the reason that it was not verified and contained general issues. Plaintiff was given leave to file an answer to interrogatories, and defendants' answer was ordered stricken with leave to file an amended answer. Several days later, on oral motion of the attorneys for the defendants and without notice to the plaintiff, the order was modified to provide that the defendants might answer or plead within the time granted. The defendants filed a request for admissions of facts and the plaintiff admitted the following facts:
"1. That the plaintiff and all that may benefit from the law suit reside in Illinois.
"2. That the deceased Wayne Ingersoll at the time of his death and immediately prior thereto was a resident of Illinois.
"3. That the deceased Wayne Ingersoll met his death by drowning in the Mississippi River."
Thereafter, defendants filed a motion to strike and dismiss the complaint. In that motion the defendants requested that the court strike the paragraphs of the complaint making reference to Iowa law, alleging that the State of Iowa had no significant interest in the suit and alleging that the State of Illinois had significant interests. Thereafter, defendants amended their motion to set up the restrictions contained in chapter 70, section 2 of the Ill Rev Stats 1961, *fn3 providing generally that no action shall be brought or prosecuted in Illinois to recover damages for death occurring outside of the State of Illinois.
The court subsequently entered an order holding that the cause of action might be prosecuted in the State of Illinois, but also finding that the laws of the State of Illinois, rather than the laws of the State of Iowa, determine the rights of the parties. An order dismissing the complaint was entered and the plaintiff was given leave to file an amended complaint. Before the time allotted, plaintiff moved and obtained an order to amend the complaint by substituting the personal representative of the defendant, William Klein, as a defendant in the suit, suggesting the death of Klein; and plaintiff further elected to stand on her complaint as amended.
We will approach the procedural question first. Plaintiff argues that by filing an answer to the complaint the defendants have admitted the sufficiency of the complaint. They further argue that since the order as originally entered gave leave to file an amended answer, it was not proper to get leave from the court to plead rather than answer without having given notice in advance to the plaintiff. (A further portion of the procedural argument is directed at defendants' amended motion referring to chapter 70, section 2, supra, but defendants have conceded that this portion of the statute is unconstitutional under the full faith and credit clause of the U.S. ...