Diebold v. Sharp

• Decision Date: 10 March 1898
• Docket Number: 2,385
• Citation: 49 N.E. 837,19 Ind.App. 474
• Parties: DIEBOLD, ADMINISTRATOR, v. SHARP ET AL
• Court: Indiana Appellate Court

49 N.E. 837

19 Ind.App. 474

DIEBOLD, ADMINISTRATOR, v. SHARP ET AL

No. 2,385

Court of Appeals of Indiana

March 10, 1898

From the Allen Circuit Court.

Affirmed.

J. M Robinson, Henry Colerick and J. E. K. France, for appellant.

Zollars & Worden, for appellees.

OPINION

BLACK J.

The appellant, administrator of the estate of Clara Diebold deceased, sued the appellees, Carrie B. Sharp, Delphine B. Wells and the Westminster Seminary Association, to recover for the death of the appellant's intestate caused by an explosion of gas in a closet of a school building wherein she was employed as a domestic. There was a special verdict, in the formal alternative conclusion of which the jury assessed damages to the appellant in the sum of $ 2,500.00. The court rendered judgment for the appellees. The rulings upon the motions of the parties for judgment on the special verdict are presented alone for our consideration. In the argument on behalf of the appellant, the only question discussed relates to the measure of damages in such an action for the death of one caused by the wrongful act or omission of another, brought by the personal representative of the former.

It appears from the special verdict that the appellant's intestate was between twenty-one and twenty-two years of age and unmarried, at the time of her death; that she left surviving her a father, two brothers and a sister, who were still living; that the expectation of life of the intestate was forty years; that she was a healthy and vigorous woman, capable of earning by labor five dollars per week; that she was working for the appellees Carrie B. Sharp and Delphine B. Wells, in the kitchen of a building owned by the appellee the Westminster Seminary Association, and occupied and used as a school building by said Sharp and Wells as lessees of said association, and that the intestate went into a certain closet in said building and struck a match, thereby causing an explosion which resulted in her death. No other facts affecting the question of the amount of damages are found.

Though the burden of proof was upon the appellant, his counsel practically assume in argument that he was entitled to the rendition of judgment in his favor upon the special verdict. We could not reverse the action of the trial court and direct the entry of judgment in favor of the appellant, without examining the entire verdict, and concluding upon such examination that every material fact in support of such a judgment appears in the verdict. If it should appear from the findings of the jury that the persons for whose benefit the action was brought were damaged substantially, as claimed by counsel for the appellant, the question would arise as to whether upon such a presentation of the cause by counsel, we should examine the verdict to ascertain if in other respects it shows the appellant to be entitled to recover. This question we need not decide, inasmuch as we find ourselves unable to agree with the position taken by counsel for appellant upon the only question discussed by them.

The right to maintain a civil action for the death of a human being is purely statutory, and the proper basis for the assessment of damages in such an action must depend upon the legislative intent as found by a proper construction of the statutes. Section 267, Burns' R. S. 1894 (266, Horner's R. S. 1897), provides: "A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward." Section 285, Burns' R. S. 1894 (284, Horner's R. S. 1897), is as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

It is contended for the appellant, in effect, that under the facts shown in the special verdict, the appellant, suing for the benefit of the father, brothers, and sister of the intestate, was entitled to recover an amount equal to the value of her life.

In Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793 reviewing former cases, which are not in all respects harmonious, it was said of said sections 267 and 285 Burns' R. S. 1894 (266 and 284, Horner's R. S. 1897), that the reasonable and natural interpretation of the language employed in the first section is to give the parent who sustains injury by the death of his child a remedy for such injury in his own right, while the latter gives to the widow or next of kin, through the personal representative, a right to recover for any injury which they may have sustained by reason of the death of an adult, or one emancipated from parental services, and in whose life they may have had a pecuniary interest. It was said that during the continuance of the relation of parent and child the action is in the parent entitled to the child's services; that this relation presumptively continues during the minority of the child, but if the relation continues after majority, the parent receiving support or...