Cleveland, C., C. & St. L. Ry. Co. v. Pierce

• Decision Date: 06 December 1904
• Docket Number: No. 4,627.,4,627.
• Citation: 72 N.E. 604,34 Ind.App. 188
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. PIERCE.
• Court: Indiana Appellate Court

34 Ind.App. 188

72 N.E. 604

CLEVELAND, C., C. & ST. L. RY. CO.

v.PIERCE.

No. 4,627.

Appellate Court of Indiana, Division No. 2.

Dec. 6, 1904.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Elizabeth Pierce, administratrix of the estate of Ferdinand N. Armstrong, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Elliott, Elliott & Littleton, for appellant. John M. Bailey and F. C. Durham, for appellee.

WILEY, J.

Appellee sued appellant to recover damages for causing the death of the decedent, alleging that it resulted from appellant's negligence. Her complaint was in one paragraph, to which a demurrer was overruled. Appellant's motion to make the complaint more specific was also overruled. Appellant answered in two paragraphs, to the second of which appellee replied in three paragraphs, to the second and third paragraphs of which a demurrer was overruled. Trial by jury, verdict, and judgment for appellee. The jury also found specially by its answers to interrogatories addressed to it. Appellant's motion for judgment on the answers to the interrogatories, and for a new trial, were each overruled. All the rulings adverse to appellant are assigned as errors.

In her complaint appellee avers that appellant owns and operates a system of railroads, with one of its main lines running from Indianapolis, Ind., to Cincinnati, Ohio; that another of its main lines runs from the city of Louisville, in Kentucky, in a northerly direction to St. Joe, Mich.; that said two lines cross and intersect each other at the city of Greensburg, in the state of Indiana; that said facts existed on the 18th day of September, 1898; that on said date “one Fernando W. Armstrong was employed by and working for said company in the capacity of brakeman, and was working upon the main line from Indianapolis to Cincinnati, and had been so employed for some time; that on said day said Armstrong was acting as brakeman in the discharge of his duties on said railroad, and was in the act of delivering cars from the line upon which he was working to the main line from Louisville to St. Joe; that at said time, while in the discharge of his duties and using due care and caution, the said Armstrong, by reason of the carelessness and negligence of said defendant and its servants and employés, and by reason of the defective ways, works, cars, and machinery, known to the defendant, received injuries from which he died; that by reason of the carelessness and negligence of the person or persons in the service of the defendant who had charge of the switchyard and roundhouse at Greensburg, controlled by said defendant, a freight car was carelessly and negligently caused, suffered, and allowed to run out of said switchyard upon one of the switch tracks in said yard at ten (10) o'clock at night, without any one upon or in charge or control of the same, and without any light thereon, and without any brake or brakes being set thereon or attached thereto; “that said freight car ran off of said switch upon the line that the train the said Armstrong was aboard, ran into, upon, and over the car or coach that said Armstrong was in and upon, thereby cutting, maiming, and wounding said Armstrong's entire body, from which injuries he died.” It is then averted that he left surviving him the appellee, who was his wife, and one son 13 years old, and that the appellee was appointed and qualified as administratrix of his estate.

The capacity in which appellee sues is designated in the complaint as “Elizabeth Peirce, administratrix of the estate of Ferdinand N. Armstrong, deceased.” The complaint shows that the person whose death was caused by appellant's alleged negligence, and for whose death she seeks to recover damages, was “Fernando W. Armstrong,” and not the decedent of whose estate she is administratrix. Under the statute, a person suing in the capacity of administratrix can only recover for the use and benefit of the estate she represents, or, in such case as this, for the use and benefit of the next of kin of the decedent. It is true that the complaint alleges that Fernando W. Armstrong was the husband of the plaintiff, but she is not suing for the death of Fernando W. Armstrong, for she sues as administratrix of the estate of Ferdinand N. Armstrong. She could be such administratrix, but could not sue to recover damages for the death of Fernando W. Armstrong, as her husband, in that capacity.

Appellee's counsel concedes the discrepancy which is apparent upon the face of the complaint, but seeks to avoid its effect by asserting that the two names are idem sonans. We cannot agree with this assertion. The well-understood meaning of the term idem sonans is “sounding the same; substantially identical in sound.” Anderson's Law Dict. p. 520. The names “Ferdinand” and “Fernando” do not sound the same, nor are they substantially identical in sound. Both words are common Christian names, and their pronunciation and sound radically different. The rule by which to determine whether two names are idem sonans has been stated by the Supreme Court as follows: “If the names may be sounded alike, without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial.” Black v. State, 57 Ind. 109. Measured by this rule, it was held in the case just cited that the names “McKaskey” or “McKlaskey” and “McCaskey” were not idem sonans. And in Vance v. State, 65 Ind. 460, it was held that “Dellia Weaver” and “Della Weaver” were not idem sonans. Also that “A. B. Robinson” and “Alexander Robinson” were not. Zellers v. State, 7 Ind. 659. Nor “Wortman” and “Workman.” City of Lafayette v. Wortman, 107 Ind. 404, 8 N. E. 277. Nor “Hannah McCormick” and “Hannah McGormick.” State v. McCormick, 141 Ind. 685, 40 N. E. 1089. In the case we are considering, the names “Ferdinand” and “Fernando,” as they appear in the title of the cause and body of the complaint, cannot be “sounded alike,” even by “doing violence to the power...