Brown v. Kemp
| Decision Date | 04 November 1919 |
| Docket Number | No. 10012.,10012. |
| Parties | BROWN v. KEMP. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Theophilus J. Moll, Judge.
Action by Irene Kemp, administratrix of the estate of Nathaniel Kemp, against Harry W. Brown and another. From an adverse judgment, the named defendant appeals. Reversed, with instructions.
Russell Willson and Romney Willson, both of Indianapolis, for appellant.
John Browder and Joseph K. Brown, both of Indianapolis, for appellee.
The appellee, as administratrix of the estate of Nathaniel Kemp, commenced this action against appellant and the National Surety Company.
The complaint alleges that the appellant was a retailer of intoxicating liquors, and as such executed a bond as required by law (section 8323g, Burns' R. S. 1914), with said surety company as surety, a copy of said bond being filed with and made a part of the complaint; that appellant unlawfully sold intoxicating liquor to said decedent until he became intoxicated; that while he was in an intoxicated condition, and as a result of such unlawful sales, said decedent was run over and killed by a train of cars on the Lake Erie & Western Railroad; that the said decedent left surviving him Irene Kemp, who was his wife, and a daughter, Lilly May Kemp, who were dependent upon him for support, and asking damages in behalf of the widow and child for their loss of support and maintenance. An answer was filed in two paragraphs, the first being a general denial. The second paragraph of answer alleged that the appellee as such administratrix commenced an action in the Marion superior court against the Lake Erie & Western Railroad to recover damages from it on account of the alleged negligence of the railroad in running one of its trains of cars over said decedent and killing him; that appellee settled with the railroad company and was paid $250 in full of all damages; that, in consideration of said payment, she executed and delivered to said railroad company a written release whereby she released and discharged the said railroad company from all claims and damages against it arising out of, and on account of the death of said Nathaniel Kemp. A reply of general denial was filed, and the cause was submitted to the court for trial. There was a finding against the appellant and said surety company in the sum of $250. The appellant and the surety company each filed a motion for a new trial upon the grounds that the finding was not sustained by sufficient evidence and was contrary to law. This motion was sustained as to the surety company and overruled as to the appellant, after which the cause was dismissed as to the surety company and judgment rendered against the appellant.
The only error assigned is that the court erred in overruling appellant's motion for a new trial. The first contention of appellant is that an action on a retail liquor dealer's bond for loss of support through death cannot be prosecuted by the administratrix; that this action should have been prosecuted by the state on relation of the widow and child. The appellant relies upon Couchman v. Prather, 162 Ind. 250, 70 N. E. 240, to support this contention. This case holds as appellant contends, but it is not controlling in this appeal. The right of an administrator to maintain this kind of an action was there raised by a demurrer for want of facts. In the instant case, the sufficiency of the complaint was not tested by demurrer. If appellant desired to raise the question as to the right of appellee, as administratrix, to prosecute this action, he should have presented that question by a demurrer for want of facts. The right of appellee to prosecute this action, not having been presented by demurrer, was waived and cannot be raised by a motion for a new trial. Section 344, Burns' R. S. 1914; Gillispie v. Darroch, 57 Ind. App. 482, 107 N. E. 475;American, etc., Co. v. Widiger, 186 Ind. 227, 114 N. E. 457;La Plante v. State ex rel., 152 Ind. 80, 52 N. E. 452;American, etc., Bank v. McGettigan, 152 Ind. 582, 52 N. E. 793, 71 Am. St. Rep. 345;Bowser, Adm'r, v. Mattler, 137 Ind. 649, 35 N. E. 701, 36 N. E. 714;Frazer v. State, 106 Ind. 472, 7 N. E. 203;White v. Suggs, 56 Ind. App. 572, 104 N. E. 55;Standard Forging Co. v. Holmstrom, 58 Ind. App. 306, 104 N. E. 872.
Nothing is better settled than, when the Legislature specifically prescribes an adequate legal remedy, that alone is open to the litigant. Southern Railroad Co. v. R. R. Commission, 172 Ind. 113, 87 N. E. 966; Couchman v. Prather, supra.
The evidence without any conflict shows that appellee commenced an action against the Lake Erie & Western Railroad Company to recover damages from it on account of its alleged negligence in running over and killing her decedent. Before the trial in the instant case, the appellee filed a petition in the probate court appointing her, for leave to settle with the railroad company. Leave was granted, and the railroad company paid her $250 in full of all claims against it on account of the alleged negligent killing. Appellee thereupon signed, acknowledged, and delivered to the railroad company a written release reading as follows:
“For the sole consideration of two hundred fifty and no/100 dollars, received to my full satisfaction of the Lake Erie and Western Railroad Company I hereby release and discharge the said company from all liability for damages of every kind, nature or description, arising from injuries suffered or death sustained by Nathaniel Kemp deceased at or near Indianapolis, Indiana, on or about the seventh day of February, 1915; said settlement being authorized by order of the probate court of Marion county, in the state of Indiana; and I hereby agree that this release shall be a complete bar in any action which might be brought otherwise at common law or under any state or federal statute for the benefit of any person or estate whatsoever, for the recovery of damages on account of said injuries or death.”
The appellant insists that the appellee, having received payment in full from the railroad company for the death of Nathaniel Kemp and having executed a release to it is not entitled to proceed against the appellant; that the injury was single; and that there could be but one satisfaction.
The basis of an action on a liquor bond sounds in tort, and the tort-feasor rule appliesin such actions. American, etc., Co. v. State, 50 Ind. App. 475, 98 N. E. 829. “The weight of authority will,” says Cooley, “support the general proposition that, where the negligence of two or more persons concur in producing a single indivisible injury, then such persons are jointly and severally...
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