Berry v. Louisville

• Decision Date: 18 June 1891
• Citation: 28 N.E. 182,128 Ind. 484
• Parties: Berry v. Louisville, E. & St. L. R. Co.
• Court: Indiana Supreme Court

128 Ind. 484

28 N.E. 182

Berry

v.Louisville, E. & St. L. R. Co.

Supreme Court of Indiana.

June 18, 1891.

Appeal from circuit court, Dubois county; O. M. Welborn, Judge.

Rev. St. Ind. 1881, § 266, gives a parent the right to maintain an action for the injury or death of a child. Section 284 gives the personal representatives of one who is killed by the negligent act of another the right to maintain an action therefor.

Gardiner & Taylor and J. F. Tiernan, for appellant. Brown, Humphrey & Davie, for appellee.

McBRIDE, J.

This was a suit by the appellant, John Berry, as administrator of his deceased minor son, Henry E. Berry, to recover damages for the alleged negligent killing of his intestate. The only question discussed by counsel on either side is as to appellant's right to maintain the action, he insisting that while he might have sued as parent of the decedent, under section 266, Rev. St. 1881, he had a right to elect between the remedy given by that section and that given by section 284, Id. It is averred in the complaint that the deceased was 18 years of age, and left surviving him both father and mother; but that for two months before and at the time of his death he was not in the service of his parents, or either of them. Appellant contends that, if his right to maintain the action was otherwise doubtful, these averments show an emancipation of the decedent, and that after emancipation his relation to his parents was not different from that of an adult son. It is well settled that, under section 266, a parent may maintain an action for injuries resulting in the death of his minor child. Mayhew v. Burns, 103 Ind. 328, 2 N. E. Rep. 793; Railway Co. v. Goodykoontz, 119 Ind. 111, 21 N. E. Rep. 472, Railroad Co. v. Tindall, 13 Ind. 366;Railway Co. v. Vining's Adm'r, 27 Ind. 513. It is also decided by these cases that the two sections 266 and 284 are to be construed together, the former being applicable to the cases of infants, and the latter to those of adults and infants whose parents have relinquished their right to the services of the child by emancipation or otherwise. It is insisted that the latter proposition, relating to infants, while it is asserted in each of these cases, was not necessary to the decision of the cases, and is obiter; and the appellee urges with much earnestness, and some plausibility, that a voluntary emancipation by a parent will not affect the question, for the reason that the parent can at any time...