Cincinnati, H.&D. Ry. Co. v. McCullom

• Citation: 109 N.E. 206,183 Ind. 556
• Decision Date: 16 June 1915
• Docket Number: No. 22742.,22742.
• Court: Supreme Court of Indiana
• Parties: CINCINNATI, H. & D. RY. CO. v. McCULLOM.

183 Ind. 556

109 N.E. 206

CINCINNATI, H. & D. RY. CO.

v.McCULLOM.

No. 22742.

Supreme Court of Indiana.

June 16, 1915.

Appeal from Circuit Court, Marion County; Chas. Remster, Judge.

Action by Joseph W. Roebuck, prosecuted on his death by Joseph McCullom, his administrator, against the Cincinnati, Hamilton & Dayton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 47 Ind. App. 184, 93 N. E. 1033.

Elam, Fesler & Elam, of Indianapolis, for appellant. J. Burdette Little and Wm. F. Elliott, both of Indianapolis, for appellee.

LAIRY, J.

This action was originally brought by Joseph W. Roebuck to recover damages for personal injuries sustained while he was employed as brakeman. Roebuck became insane, and his guardian obtained a judgment against appellant, from which it appealed. The judgment was reversed by the Appellate Court and a new trial ordered. Cincinnati, etc., R. Co. v. McCollum, 47 Ind. App. 184, 93 N. E. 1033. After the case was certified to the trial court appellee filed a supplemental complaint, in which it is shown that Joseph W. Roebuck died pending the appeal, and that appellee was appointed as his administrator, and as such had been substituted as appellee by an order of the Appellate Court while the cause was pending in that court.

[1] Appellant filed a demurrer, addressed to the complaint and supplemental complaint, upon the ground that such complaints, takentogether, do not state facts sufficient to constitute a cause of action. It is well settled that a complaint and a supplemental complaint are to be considered together as a single pleading when tested by demurrer. Morey v. Ball, 90 Ind. 450;Peters v. Banta, 120 Ind. 416, 22 N. E. 95, 23 N. E. 84.

[2] By the memorandum attached to the demurrer the complaint and supplemental complaint are assailed because the allegations therein contained show that the person in whose favor the cause of action for personal injury arose was dead at the time the supplemental complaint was filed. At common law a right of action for personal injuries did not survive the person injured, and in case an action had been brought it abated upon the death of either party. Boor v. Lowrey, 103 Ind. 468, 3 N. E. 151, 53 Am. Rep. 519;Burns v. Grand Rapids, etc., 113 Ind. 169, 15 N. E. 230; 1 R. C. L. § 26. The cause of action in this case abated upon the death of Roebuck, and no cause of action survived to his administrator unless the common law has been changed by statute in this state. Section 286, Burns 1914, if valid, provides for the survival of actions such as this, but if it is unconstitutional as claimed by appellant, it is without force or effect.

[3] Appellant takes the position that this statute violates the provisions of the fourteenth amendment to the Constitution, and also section 23, art. 1 of the Constitution of Indiana. The fourteenth amendment to the federal Constitution is a prohibition against the states, and the portion upon which appellant relies reads as follows:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Article 1, § 23, of the Constitution of Indiana is in these words:

“The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not belong to all citizens.”

One of the principles upon which our government is founded is that of equality of right, and this principle is emphasized in that clause of the fourteenth amendment which prohibits any state from denying to any person within its jurisdiction the equal protection of the laws. This constitutional guaranty secures to every person his constitutional rights, and requires that all burdens and liabilities imposed by law shall rest equally upon all persons under like circumstances and conditions. The provisions of the state Constitution heretofore quoted is the antithesis of the fourteenth amendment, in that it forbids the granting of privileges, or immunities and exemptions from burdens otherwise common, which, under like circumstances and conditions, are not granted to all citizens. The one prevents the curtailment of constitutional rights; the other prevents the enlargement of the rights of some in discrimination against the rights of others.

[4] These constitutional provisions do not forbid a classification of persons for legislative purposes. Laws which impose burdens and liabilities, or which grant privileges and immunities, must be general in their nature, and not special; but a law is not necessarily special because it applies only to one class of persons to the exclusion of others. If the situation, conditions, and circumstances of the persons included within the class to which the law is made to apply so differ from those of others not so included as to indicate the necessity or propriety of making the law applicable only to those included within its terms, and if the law is so framed as to apply to all to whom the reason applies and to exclude all whom the reason excludes, it will be deemed a general law. Such an act does not conflict with either of the constitutional provisions heretofore quoted. Natural and reasonable classification is permitted; arbitrary selection is forbidden. Barrett v. Millikan, 156 Ind. 510, 60 N. E. 310, 83 Am. St. Rep. 220;Indianapolis St. R. Co. v. Robinson, 157 Ind. 232-236, 61 N. E. 197.

The power of the Legislature is not without limitations, but necessarily this power must have a wide range of discretion. There is no precise rule of reasonableness of classification, and the rule of equality permits many practical inequalities. A classification having some reasonable basis is not to be condemned merely because it is not framed with such mathematical nicety as to include all within the reason of the classification and to exclude all others. Exact exclusion and inclusion is impractical in legislation. It is almost impossible to provide for every exceptional and imaginary case, and a Legislature ought not to be required to do so at the risk of having its legislation declared void, even though appropriate and proper as applied to the general subject upon which the law is intended to operate. Magoun v. Illinois Trust, etc., Co., 170 U. S. 294, 18 Sup. Ct. 594, 42 L. Ed. 1037;Louisville, etc., R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921.

[5] Bearing in mind the general principles heretofore stated, we come now to a consideration of the statute before us, realizing that it is less difficult to state principles of law than it is to make a correct and just application of these principles to a particular statute. The statute under consideration is in these words:

“That whoever has a claim for personal injuries and obtains judgment for the same against any person, company or corporation in any trial court of this state, and from which judgment any person, company or corporation, against whom or which the same was obtained, shall appeal to the Supreme or Appellate Court of this state, and such judgment be reversed by such Supreme or Appellate Court, and a new trial be granted to appellant thereon; and if the person who obtained such judgment should die, pending such appeal, or before a new trial after such reversal can be had, such claim for personal injuries shall survive and may be prosecuted by the personal representatives of such decedent, as other claims are prosecuted for and in behalf of decedents' estates.”

This statute is inaccurately worded, the verb in the principal sentence being omitted, and yet the meaning of the act is apparent. Its purpose is to provide for the survival of certain actions, and it is not seriously contended that the classification is improper which limits its application to actions resulting from personal injuries. The class of persons having claims for personal injuries is divided and a subclass is carved therefrom, including those who die after their claims have been reduced to judgment and whose judgment shall be appealed to a higher court and reversed with directions for a new trial. By the provisions of the act, the person dying must fall within this subclass, or his right of action cannot survive to his administrator. This classification does not seem to be without reason to sustain it. The Legislature may have intended that only such claims for damages should survive as were meritorious, and the fact that a claim should be reduced to judgment in a trial court may have been taken as the criterion of merit upon which the classification was based. Of course this is not an exact criterion. It is possible that some claims which are meritorious will not be reduced to judgment during the lifetime of the claimants, and that some claims may be so reduced to judgment and still be without merit, but the classification will not be condemned on that account. The purpose of the Legislature in making the classification is apparent, and a basis of classification was adopted which was intended to give effect to such purpose, and it is doubtful if any other basis of classification could have been adopted which would have more nearly accomplished the result intended. The classification is practical, and not palpably arbitrary; exact exclusion and inclusion is impractical and is not required. Ozan Lumber Co. v. Union County Bank, 207 U. S. 251, 28 Sup. Ct. 89, 52 L. Ed. 195;State v. Fairmont Creamery Co., 153 Iowa, 702, 133 N. W. 895, 42 L. R. A. (N. S.) 821; 6 R. C. L. p. 380.

If a person dies after his claim for personal injuries has been reduced to judgment and no appeal is taken from such judgment, or if such judgment is affirmed on appeal, it is an asset of his estate, and no necessity exists for the survival of the action in that event, and so, in...