Louisville v. Goodykoontz

• Decision Date: 18 May 1889
• Citation: 119 Ind. 111,21 N.E. 472
• Court: Indiana Supreme Court
• Parties: Louisville, N. A. & C. Ry. Co. v. Goodykoontz.

119 Ind. 111

21 N.E. 472

Louisville, N. A. & C. Ry. Co.

v.Goodykoontz.

Supreme Court of Indiana.

May 18, 1889.

Appeal from superior court, Marion county; L. C. Walker, Judge.

George W. Easley, Sullivan & Jones, and George R. Eldridge, for appellant. Ritter & Ritter, for appellee.

Mitchell, J.

Goodykoontz, as guardian, complains of the appellant railroad company, and charges that the death of his ward, George Lowery, a minor under the age of 21 years, was instantaneously caused by the negligence and wrongful conduct of the company. The only averment upon the subject of damages is that the ward left surviving him “a mother and sister and next of kin, competent to share in the distribution of the personal estate of said deceased, to whom damages inure,” and that by reason of the injury and death the ward's estate has been damaged in the sum of $10,000. There was a special verdict, and a judgment for $2,500. It is conceded that the action was brought under section 266, Rev. St. 1881, which reads as follows: “A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But, when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward.” It was a settled rule of the common law that no one could maintain a civil action for damages on account of the death of a human being. All claims for injuries to the person were extinguished by the death of the person injured. Actio personalis moritur cum persona. If a child was wrongfully injured, the father or person lawfully entitled to the child's services might recover for the loss of services during the period of disability up to the time of death, if death resulted. Incidental damages for nursing, surgical and medical attendance, including appropriate funeral expenses in case of death, were also recoverable by a parent. The statute above set out has added to the common-law remedy of a parent the right to recover all the probable pecuniary loss resulting from the death of a child. The right of action is primarily in the father, but contingently in the mother, and, whether there be a guardian or not, the father, or, under certain contingencies, the mother, may maintain an action under the above section. In estimating the damages, the value of the child's services from the date of the injury until he would have attained his majority, including the cost of nursing, medical and surgical attendance occasioned by the injury, together with necessary funeral expenses if death resulted, are to be considered. Pennsylvania Co. v. Lilly, 73 Ind. 252;Mayhew v. Burns, 103 Ind. 328, 2 N. E. Rep. 793; Rains v. Railway Co., 71 Mo. 164;McGovern v. Railway Co., 67 N. Y. 417; 2 Thomp. Neg. 1292; 2 Wait, Act. & Def. 477; Shear. & R. Neg. § 608.

The foregoing are the elements which enter into and presumably comprise the sum of the pecuniary loss sustained by a parent in case of the injury or death of his child, and, whether the child was under guardianship or not, the right of action to recover this pecuniary loss is in the parent, to whom the child owed service, and from whom he was entitled to receive support. While either the father or mother are alive, unless they have relinquished their right, respectively, to the services of the child by emancipation or otherwise, and have abdicated their duty to furnish him support, no one else is entitled to maintain an action for the loss of his services during minority, because the injury is to the person entitled to the child's services, and not to the minor's estate. Walters v. Railroad Co., 36 Iowa, 458; Cooley, Torts, 314 et seq. If a minor under a guardianship sustains an injury to his person from the wrongful conduct of another, his guardian may maintain an action, and...