Berry v. The Louisville, Evansville And St. Louis Railroad Co.
| Citation | 28 N.E. 182,128 Ind. 484 |
| Decision Date | 18 June 1891 |
| Docket Number | 15,064 |
| Parties | Berry, Administrator, v. The Louisville, Evansville and St. Louis Railroad Company |
| Court | Indiana Supreme Court |
From the Dubois Circuit Court.
Judgment affirmed, with costs.
W. R Gardiner, S. H. Taylor and J. F. Tieman, for appellant.
-- Brown, -- Humphrey and -- Davie, for appellee.
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, R. S. 1881, he had a right to elect between the remedy given by that section and that given by section 284, R. S. 1881. It is averred in the complaint that the deceased was eighteen 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 of 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. 793; Louisville, etc., R. W. Co. v. Goodykoontz, 119 Ind. 111, 21 N.E. 472; Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Pittsburgh, etc., R. W. Co. v. Vining, 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 which it is asserted in each of these cases was not necessary to the decision of the cases, and is obiter, and 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 reclaim the services of the infant. Citing Boyd v. Byrd, 8 Blackf. 113; Bolton v. Miller, 6 Ind. 262; Clark v. Fitch,...
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