Citizens' St. R. Co. v. Cooper

• Decision Date: 06 June 1899
• Citation: 22 Ind.App. 459,53 N.E. 1092
• Parties: CITIZENS' ST. R. CO. v. COOPER.
• Court: Indiana Appellate Court

22 Ind.App. 459

53 N.E. 1092

CITIZENS' ST. R. CO.

v.COOPER.

Appellate Court of Indiana.

June 6, 1899.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by Martha Jane Cooper against the Citizens' Street-Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ferdinand Winter and W. H. Latta, for appellant. George W. Galvin, for appellee.

WILEY, J.

Appellee sued appellant to recover damages for the alleged negligent killing of a boy 14 years old. The case was tried by a jury, resulting in a general verdict for appellee, and with the general verdict the jury answered and returned interrogatories. Appellant's motion for judgment on the answers to interrogatories were overruled, and a like motion of appellee was sustained. Appellant's motion for a new trial was also overruled. The complaint was in two paragraphs, and the trial court directed the jury to find for the appellant as to the second paragraph. As no question is presented by the record as to the second paragraph, we need not notice it further. One of the errors assigned is that the court erred in overruling the demurrer to the first paragraph of complaint. We will first review the action of the court in such ruling. That part of the complaint which shows the relations that existed between appellee and the boy, and her right, if any, to maintain this action for the alleged negligent death of such boy, is as follows: “That on the 9th day of January, 1880, at the City Hospital of the city of Indianapolis, an unmarried woman, wholly unknown to this plaintiff, and also to the officers and attendants at such hospital, and whose identity has never been discovered, and the record of whose accouchment has been destroyed by fire, gave birth to a boy child; that immediately after such birth, and on the second day of the life of such child, the mother voluntarily and of her own free will, and by and with the consent of the officer and attendants at the said hospital, gave such boy child to this plaintiff, completely and unreservedly, to be her child; that plaintiff then and there received such gift, and assumed and has ever since held the relation to such child of mother; that she gave it her name, nursed, reared, and educated him as her own, and he became and was her child to all intents and purposes; that he became and was known as Hiram Cooper; that at great expense she had reared him, and given him a good education, and relied wholly upon him for her future comfort and support; that he was completely devoted to her as to a mother, knowing of no other affection, and gave to her all of his earnings; that he had no father.” The complaint proceeds to describe the manner in which the boy was killed, and the acts of appellant's servants which are relied upon as constituting actionable negligence. Without detailing the various acts charged, it is sufficient to say that, if appellee has any right of action at all, the averments in the complaint as to appellant's negligence and freedom from negligence on her part and the part of the boy are sufficient to withstand a demurrer for want of facts. If appellee has any right of action, it is conferred upon her by statute, for at common law actions for the wrongful or negligent killing of a human being did not survive in favor of any one. We have two statutory provisions in this state which have changed the common-law rule, and which authorize actions to be brought for the wrongful or negligent killing of persons by certain parties therein named. Section 284, Horner's Rev. St. 1897, authorizes a suit of this character to be brought by an administrator for the benefit of the widow, children, or next of kin. Section 266, supra, authorizes a father, or, in case of his death, etc., a mother, to bring an action for the injury or death of a child, and a guardian for the injury or death of his ward. It is under this section of the statute, if any, that appellee can maintain this action, and she must maintain it as the mother of the child, or not at all. In her complaint, after describing how its natural mother gave the child to her, when it was only two days old, she avers: “That plaintiff then and there received such gift, and assumed and has ever since held the relation to such child as mother; that she gave it her own name, nursed, reared, and educated him as her own, and he became and was her child, to all intents and purposes.” The fact that the complaint avers that she held the relation to the child as mother cannot stand against the facts averred upon which she assumed such relation, for they show that she was not his mother. There are but two ways, in legal contemplation, by which a woman can be a mother: (1) By giving birth to a child, and (2) by adoption under the statute. Human beings are not the subjects of gifts as chattels personal, and a natural mother or father cannot give their child to another, and the relation of mother and child or of father and child cannot thus be created. Could it be contended with any show of reason, upon the facts charged in the complaint, which we have above copied, that, if the boy named had survived the appellee, he could have inherited from her, under the law of descent, as her son? We think not, and this of itself is a strong argument against appellee's theory that she has a right to recover for his death. That a parent may, under section 266, supra, maintain an action for the injury or death of his minor child, is firmly settled by the authorities. Jackson v. Railway Co., 140 Ind. 241, 39 N. E. 663, and cases cited; Railway Co. v. Goodykoontz, 119 Ind. 111, 21 N. E. 472, and cases cited. But we are not confronted with the question presented by the cases just cited, for there the actions were by the natural parents, and the right of action in such cases is clearly conferred by statute. The question, however, with which we are confronted, has been firmly settled by the supreme court. Thornburg v. Strawboard Co., 141 Ind. 443, 40 N. E. 1062, is in point. Appellant married the mother of a bastard child, and upon such marriage he took said child into his home as a member of his family. The child was killed through the alleged negligence of appellee, and appellant prosecuted an action to recover damages for such death. In construing the statute in connection with the rights of the parties therein named, Monks, J., said: “Such right to maintain an action for damages on account of the death of a human being is entirely statutory, and, before appellant can recover such damages, he must bring himself clearly within the terms of the statute. Jackson v. Railway Co., supra, and cases cited; Berry v. Railroad Co., supra , and cases cited; Railway Co. v. Goodykoontz, supra, and cases cited; Tiff. Death Wrongf. Act, § 116, and cases cited. It is an old and firmly established rule that a statute in derogation of common law must be strictly construed. As this court said in Railway Co. v. Keely's Adm'r, 23 Ind. 133, speaking of this class of actions: ‘As the right to sue is purely a statutoryone, and in derogation of common law, the statute must be strictly construed, and the case brought clearly within its provisions, to enable the plaintiff to recover.’ Stewart v. Railroad Co., 103 Ind. 44, 2 N. E. 208. Such a right of action exists only for the benefit of the person or persons specified in the statute, and, when the statute specifies who may bring such actions, only those named can maintain it. If no such persons...