City of Indianapolis v. Willis

• Decision Date: 23 February 1935
• Docket Number: No. 26262.,26262.
• Court: Indiana Supreme Court
• Parties: CITY OF INDIANAPOLIS v. WILLIS.

208 Ind. 607

194 N.E. 343

CITY OF INDIANAPOLIS

v.WILLIS.

No. 26262.

Supreme Court of Indiana.

Feb. 23, 1935.

Action by Herbert C. Willis, administrator of the estate of George E. Byrd, against the City of Indianapolis. Judgment for plaintiff, and defendant appeals.

Affirmed.

Transferred from the Appellate Court under section 4-209, Burns' Ann. St. 1933 (section 1351, Burns' Ann. St. 1926).Appeal from Morgan Circuit Court; Joseph Williams, Judge.

Edw. H. Knight and James E. Deery, both of Indianapolis, Kivett & Kivett, of Martinsville, and Herbert M. Spencer, of Indianapolis, for appellant.

J. E. Sedwick, of Martinsville, and White & Jones and Henry R. Wilson, Jr., all of Indianapolis, for appellee.

ROLL, Judge.

Appellee, as administrator of the estate of George E. Byrd, brought this action against the city of Indianapolis to recover damages for the alleged wrongful death of his decedent, occasioned by the alleged negligence of said city in permitting a dangerous condition of the streets at the intersection of Thirteenth street and the canal, which negligence consisted in the failure of the city to erect proper guards, signals, or warnings at said intersection.

It appears from the record that appellee's decedent and two other passengers engaged a taxicab owned and driven by one Harry Carr for hire on the night of April 2, 1927, and were being driven on and over Thirteenth street, a public thoroughfare in said city; that said Thirteenth street extends from Fall creek in the western part of the city in an easterly direction to and across Fayette street, and across the canal, and continues on east to Fort Wayne avenue, and was one of the regularly platted streets of said city, and had been for many years prior thereto, but, while said street extended across said canal, no bridge or regular crossing had ever been constructed at the intersection of said canal and said Thirteenth street over said canal. On the night in question, appellee's decedent was riding in the rear seat of said cab. The other two passengers were sitting beside him; the lady passenger sitting on the other man's lap. The cab driver was instructed to drive to the intersection of West street and Thirteenth street and then turn east on Thirteenth street. The driver, after he turned east on Thirteenth street, continued in an easterly direction and crossed Fayette street and into the canal. Fayette street at this point runs in a northerly and southerly direction along and adjacent to the west bank of the canal; the east edge of the street being only a few feet west of the west bank of the canal.

There was a verdict in favor of appellee for $5,000, and, after appellee remitted $1,500 thereof, judgment was rendered against the city for the sum of $3,500. Appellant's motion for a new trial was overruled, and this is the only error assigned for reversal in this court. The causes for a new trial are: That the verdict is not sustained by sufficient evidence and is contrary to law; that the damages assessed by the jury are excessive; that the court erred in the exclusion of certain evidence, the giving and refusal to give certain instructions, and the overruling of defendant's motion for a directed verdict.

Under the assigned reason that the verdict is not sustained by sufficient evidence, appellanturges the reversal of this case, for the reason that the record affirmatively shows that no notice was given appellant prior to the filing of the complaint, as required by section 11230, Burns' Ann. St. 1926, and that the giving of such a notice is a condition precedent to the right to maintain this action. Section 11230, supra, reads as follows: ‘No action in (for) damages for injuries to person or property resulting from any defect in the condition of any street, alley, highway, or bridge, shall be maintained against any city or town of this state unless written notice containing a brief general description of the time, place, cause, and nature of such injury shall, within sixty days thereafter, or if such defect consists of ice or snow or both, within thirty days thereafter, be given to the clerk or mayor or members of the board of trustees of such city or town.’

Appellant contends that the above statute applies to actions brought by an administrator to recover damages for the wrongful death of his decedent, as authorized by the provisions of section 292, Burns' Ann. St. 1926, section 2-404, Burns' Ann. St. 1933, which section provides as follows: ‘When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he or she (as the case may be) lived, against the latter for an injury for the same act of omission. The action shall be commenced within two years. The damages can not exceed ten thousand dollars; and must inure to the exclusive benefit of the widow or widower (as the case may be), and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.’

If the first above quoted statute applies to this case, appellee is not entitled to recover, as it is admitted by appellee that no notice was given to the appellant prior to the filing of the complaint, as required by said statute. As far as we are at present advised this question is one of first impression in this state. Appellant concedes that, if the street extends to and terminates where a canal or other stream or body of water or a ravine crosses such street, the municipality must use ordinary care to protect from injury persons who make lawful use of the street in a reasonably prudent manner. Barricades, lights, or warnings of danger should be placed where a public street of the city intersects or approaches a canal or ditch. A negligent failure to do this constitutes a defect in the condition of such street. From this proposition it concludes that such a condition comes within the terms of the statute requiring notice of any injury resulting therefrom, as provided for by the statute, and cites as an authority for this the case of Town of Spencer v. Mayfield (1908) 43 Ind. App. 134, 85 N. E. 23. This case supports the proposition as to what constitutes a defect in the street, but we are unable to find any support in this case for appellant's conclusion.

Appellant also makes the point and cites several authorities to the proposition that there is no exception made in the statute in suits to recover damages for injury to the person, to which we can agree.

Appellant cites also the case of City of Columbus v. Goodnow (1929) 91 Ind. App. 6, 168 N. E. 191,169 N. E. 885, and insists that this case, at least impliedly, holds that the giving of notice applies to a case of wrongful death. A careful examination of this case will disclose that this question was not presented to the court nor decided in that case. It is true that that was a wrongful death case. In that case Stella Goodnow signed the notice, and appellant contended that, because the notice was given by Stella Goodnow, the widow of the deceased, and not by Stella Goodnow, the administratrix of his estate, it was therefore insufficient. We quote the following excerpt from page 13 of 91 Ind. App.,168 N. E. 191,169 N. E. 885, 886: ‘The notice informed appellant city that Stella Goodnow was the widow and the sole and only heir at law of the deceased. The city is bound to know that, by statutory regulation, an action for wrongful death maintained by the personal representative inures solely to the widow and children, if any, or next of kin in this case, there being no such heirs other than the widow, solely to her benefit, and that she had the only claim which might arise from such wrongful death, and that the prosecution of such claim was, in a legal way, properly by the personal representative. We hold that the notice was sufficient.’

It will be noted that the statute here in question provides that ‘no action for damages for injuries to person* * * shall be maintained against any city * * * unless written notice * * * be given to the clerk. * * *’ Burns' Ann. St. 1926, § 11230. It must be taken as well settled by the decisions of this court that, in the absence of statutory enactments, actions for injuries to the person abate on the death of the person injured, and do not survive to the personal representatives. Burns, Adm'r, v. Grand Rapids, etc., R. Co. (1888) 113 Ind. 169, 15 N. E. 230;Hilliker v. Citizens' Street R. Co. (1899) 152 Ind. 86, 52 N. E. 607, 608.

It is not equally well settled that the so-called death by wrongful act statute, section 292, supra, is not a survival statute. In the case of Hilliker v. Citizens' Street R. Co., supra, the court, in discussing the socalled death by wrongful act statute, said: ‘These statutes, while they do not in terms revive the common-law right of action for personal injury, nor make it survive the death of the injured person, create a new right in favor and for the benefit of next of kin or heirs of the person whose death is wrongfully caused.’

In Louisville, etc., Co. v. Goodykoontz (1889) 119 Ind. 111, 21 N. E. 472,12 Am. St. Rep. 371, the court, speaking on the same subject, said: ‘The pain and suffering endured, and the permanent injury resulting from the wounding or maiming of a minor, are personal to himself, and damages for such pain and injuries are always recoverable for his benefit. We know of no principle nor precedent which sustains a recovery of damages for the death of a human being, no matter how caused, simply for the purpose of enhancing the value of the decedent's estate. The action is given to afford compensation for those who have sustained pecuniary loss by the death, and not for the benefit of the decedent's estate.’

An action by an administrator to recover damages from one wrongfully causing the death of a human being was never recognized at common law, and no...