Boland v. Greer, No. 3-479A109

Docket NºNo. 3-479A109
Citation422 N.E.2d 1236
Case DateJuly 13, 1981
CourtSupreme Court of Indiana

Page 1236

422 N.E.2d 1236
Robert BOLAND, Administrator of the Estate of Lee Boland,
Deceased, and Robert Boland, Appellant (Plaintiff
below),
v.
Earl F. GREER, Appellee (Defendant below).
No. 3-479A109.
Supreme Court of Indiana.
July 13, 1981.

Appeal from the Porter Superior Court; Bruce W. Douglas, Judge.

Frank J. Galvin, Jr., Galvin & Galvin, Hammond, for appellant (plaintiff below).

James J. Nagy, Paul A. Rake, Eichhorn, Eichhorn & Link, Hammond, for appellee (defendant below).

John P. McQuillan, Samuel J. Bernardi, Jr., Robin D. Pierce, Spangler, Jennings, Spangler & Dougherty, P. C., Merrillville, for amicus curiae, Indiana Defense Lawyers Ass'n, Inc.

Jeffrey A. Cooke, Cooke & Bache, Lafayette, for amicus curiae, Indiana Trial Lawyers Ass'n.

Petition to Transfer Denied (For opinion of Court of Appeals

see 409 N.E.2d 1116)

ON PETITION TO TRANSFER

HUNTER, Justice, dissenting to denial of transfer.

I must respectfully dissent from this Court's refusal to grant Boland's petition to transfer. In so acting, we perpetuate here today a wholly anomalous rule of law which, but for its roots in stare decisis, has no legal or factual basis. That rule is that the assessment of damages suffered by a parent for the wrongful death of a child cannot include the parent's loss of love, affection, and companionship. I would grant transfer and vacate the opinion of the Court of Appeals, Boland v. Greer, (1980) Ind.App., 409 N.E.2d 1116, wherein that court reaffirmed the above rule.

The prohibition against a parent's recovery for the loss of love, affection, society, and companionship which accompanies the wrongful death of a child is, as I have described it, anomalous to the case law which surrounds it. This Court has recognized that a parent's loss of companionship and mental suffering occasioned by the abduction of a minor child were compensable injuries. Montgomery v. Crum, (1928) 199 Ind. 660, 161 N.E. 251. This Court has held that a parent could recover damages for injured feelings and family dishonor resulting from the seduction of a daughter. Felkner v. Scarlet, (1867) 29 Ind. 154; Pruitt v. Cox, (1863) 21 Ind. 15. And this Court has recognized that a child's loss of love and affection occasioned by the wrongful death of a parent is a compensable injury. American Carloading Corp. v. Gary Trust & Sav. Bank, (1940) 216 Ind. 649, 25 N.E.2d 777; Richmond Gas Corp. v. Reeves, (1973) 158 Ind.App. 338, 302 N.E.2d 795.

American Carloading Corp., supra, as well as Richmond Gas Corporation v. Reeves, supra; State v. Daley, (1972) 153 Ind.App. 330, 287 N.E.2d 552, and New York Central Railroad Company v. Wyatt, (1962) 135 Ind.App. 205, 184 N.E.2d 657, stand for the proposition that the loss of love and affection are compensable under the general wrongful death statute, Ind.Code § 34-1-1-2 (Burns 1973). It is only under the statute relevant here, Ind.Code § 34-1-1-8 (Burns 1973), which specifically governs actions for the wrongful death of a minor child, that such injuries are not compensable-in-law. Louisville, N.A. & C. Ry. Co. v. Rush, (1891) 127 Ind. 545, 26 N.E. 1010; Siebeking v. Ford, (1958) 128 Ind.App. 475, 148 N.E.2d 194; Hahn v. Moore, (1956) 127 Ind.App. 149, 133 N.E.2d 900.

Page 1237

But see Childs v. Rayburn, (1976) 169 Ind.App. 147, 346 N.E.2d 655. 1

What is the reason for the rule? Why the distinction between the general and specific wrongful death statutes? It is not by virtue of any language which the legislature employed in either statute; both are silent on the subject.

Rather, the prohibition is directly attributable to the common law rule that parents have a "property right" in their minor child's services. Louisville, N.A. & C. Ry. Co. v. Rush, supra; Siebeking v. Ford, supra; Hahn v. Moore, supra. The court in Siebeking explained:

"The right of a parent to the services of his minor child is a property right. * * * In Hahn v. Moore, supra, this court said:

" 'The right of a parent to the services of his minor child is a property right and the statute Sec. 2-217 Burns' 1946 Replacement, gives the parent, in his own right, a cause of action for loss of such services or other pecuniary injury occasioned by personal injuries to or the death of his minor child, which action is not one for injury to the person but for injury to property within the meaning of Sec. 2-601, Burns' 1946 Replacement.'

"An action based upon the pecuniary loss suffered by the parent when wrongfully deprived thereof differs from the right of a widow or next of kin to recover, through a personal representative, for injuries sustained by reason of the death of an adult or emancipated minor, in that the latter is grounded upon their pecuniary interest in the life of the decedent and not on a property right. Hahn v. Moore, supra. 128 Ind.App. at 496-497, 148 N.E.2d at 206-207.

The implication is not a subtle one: A parent's interest, legal or otherwise, in a minor child does not extend beyond the property right in the child's services.

As surely as this narrow view of a minor child's meaning to his or her parents calls to mind the classical works of Charles Dickens, so the origins of the rule have been traced to the era of industrial development which dominated nineteenth century England. Wycko v. Gnodtke, (1960) 361 Mich. 331, 105 N.W.2d 118. In Wycko, Justice Smith described the then-prevailing socio-economic mood and the development of Lord Campbell's Act, the precursor of our modern-day wrongful death statutes. He concluded:

"This, then, was the day from which our precedents come, a day when employment...

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6 practice notes
  • Durham ex rel. Estate of Wade v. U-Haul International, No. 49S02-0005-CV-294.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Abril 2001
    ...legal and social underpinnings of a common law rule have evaporated, we have not refused to abolish or alter the rule." Boland v. Greer, 422 N.E.2d 1236, 1239 (Ind.1981) (Hunter, J., dissenting to denial of transfer) (citing Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972) (doctrine o......
  • Elza v. Liberty Loan Corp., No. 2-1180A371
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1981
    ...argument, for we permit recovery for mental distress in a wide variety of situations. See cases cited in Boland v. Greer, (1981) Ind., 422 N.E.2d 1236, 1238 (Hunter, J., dissenting to denial of It was the continually-evolving state of medical science which prompted this Court to its recent ......
  • Allstate Ins. Co. v. Boles, Civ. A. No. IP83-834-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 30 Mayo 1984
    ...that judicial relief should be summarily denied. Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794, 796-97 (1972). See Boland v. Greer, 422 N.E.2d 1236, 1239 (Ind.1981) (citing Brooks as abolishing doctrine of spousal immunity based on outmoded legal theories) (Hunter, J., dissenting to denia......
  • Garrison v. Foy, No. 3-1284A343
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 Diciembre 1985
    ...physical or mental suffering or pain by reason of loss of the child. Boland v. Greer (1980), Ind.App., 409 N.E.2d 1116, trans. denied, 422 N.E.2d 1236 (1981); IND.CODE Sec. 34-1-1-8. Therefore consideration of these factors would not be permissible in a wrongful pregnancy action to offset t......
  • Request a trial to view additional results
6 cases
  • Durham ex rel. Estate of Wade v. U-Haul International, No. 49S02-0005-CV-294.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Abril 2001
    ...legal and social underpinnings of a common law rule have evaporated, we have not refused to abolish or alter the rule." Boland v. Greer, 422 N.E.2d 1236, 1239 (Ind.1981) (Hunter, J., dissenting to denial of transfer) (citing Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972) (doctrine o......
  • Elza v. Liberty Loan Corp., No. 2-1180A371
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1981
    ...argument, for we permit recovery for mental distress in a wide variety of situations. See cases cited in Boland v. Greer, (1981) Ind., 422 N.E.2d 1236, 1238 (Hunter, J., dissenting to denial of It was the continually-evolving state of medical science which prompted this Court to its recent ......
  • Allstate Ins. Co. v. Boles, Civ. A. No. IP83-834-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 30 Mayo 1984
    ...that judicial relief should be summarily denied. Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794, 796-97 (1972). See Boland v. Greer, 422 N.E.2d 1236, 1239 (Ind.1981) (citing Brooks as abolishing doctrine of spousal immunity based on outmoded legal theories) (Hunter, J., dissenting to denia......
  • Garrison v. Foy, No. 3-1284A343
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 Diciembre 1985
    ...physical or mental suffering or pain by reason of loss of the child. Boland v. Greer (1980), Ind.App., 409 N.E.2d 1116, trans. denied, 422 N.E.2d 1236 (1981); IND.CODE Sec. 34-1-1-8. Therefore consideration of these factors would not be permissible in a wrongful pregnancy action to offset t......
  • Request a trial to view additional results

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