Duzan v. Myers

• Citation: 65 N.E. 1046,30 Ind.App. 227
• Parties: DUZAN v. MYERS et al.
• Decision Date: 06 January 1903
• Court: Court of Appeals of Indiana

30 Ind.App. 227

65 N.E. 1046

DUZAN

v.MYERS et al.

Appellate Court of Indiana, Division No. 2.

Jan. 6, 1903.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Proceedings by Tillie Duzan, administratrix of Henry D. Myers, deceased, against Grace M. Myers, Harry D. Myers, and others, for the distribution of the sum recovered in an action against third persons for the negligent killing of deceased. Judgment admitting Grace Myers and Harry Myers to share in the distribution of the fund, and the petitioner and certain other defendants appeal. Affirmed.Miller, Elam & Fesler, for appellants. Clarke & Clarke, for appellees.

COMSTOCK, J.

On the 30th day of November, 1898, this appellant, then the widow of Henry D. Myers, deceased, was appointed administratrix of his estate. As such administratrix, the appellant filed her complaint in the superior court of Marion county against William C. Scofield, Charles W. Scofield, Daniel Shurmer, and John Teagle for damages resulting from the negligent killing of her husband by said defendants. She averred in this complaint, among other things, that the decedent left surviving him this appellant, his widow; a daughter, Ruth Jannette Myers, aged ten years; a daughter, Gail B. Myers, aged six years; and a son, Lew W. Myers, aged one year,-and that this appellant and these three children were wholly dependent upon the deceased for support, care, and protection. No other children or kin were mentioned in the complaint. The case stated in this complaint was prosecuted to the final judgment, which was affirmed upon appeal to this court 60 N. E. 1005. Afterward, on the 9th day of January, 1902, this appellant, who had then intermarried with one Duzan, filed her final report in the Marion circuit court. This report shows, in substance, the recovery of the judgment in the action for negligence, its affirmance in the appellate court of Indiana, and the subsequent payment thereof by the defendants. The amount paid, which included accumulated interest and costs, was $4,495.33. It also showed the payment of appellant's attorneys, asked an allowance of $100 to appellant for her services and for a small sum advanced by her for witness fees, and prayed for an order directing that the remainder be distributed as follows: One-third to the appellant, who was the widow of Henry D. Myers, deceased, and the remaining two-thirds in equal shares to her three minor children, Ruth Jannette, Gail Beatrice, and Lew Whircomb, who were dependent upon the deceased for support at the time of his death. The report also shows that the deceased left no property, and that nothing was received by this appellant except the sum above mentioned. On the 31st day of January, 1902, Harry D. Myers, Howard L. Myers, Grace Myers, and Bessie L. Myers, by attorneys, filed objections and exceptions to the report of this appellant. The paper styled “Objections and Exceptions” was a joint one by the four persons last named. It stated, in substance, that the four persons named are surviving children of Henry D. Myers, deceased, and entitled to share equally with his other children in the fund for distribution. It is also averred that this appellant having married again, and her children having a stepfather, neither this appellant nor her children were entitled to participate in the distribution at all. Harry D. Myers, one of the four petitioners, in the same paper makes a special objection on the ground that he was a minor at the time the judgment for the father's death was taken, and therefore entitled to share equally with the other minor children of the deceased. Grace Myers, another of the objectors in the same paper, also stated a separate objection, applicable to her only. It was, in substance, that she had a physical infirmity whereby she was more in need of assistance from her father than any of her brothers or sisters, and that she should therefore share in the distribution of the fund. She does not claim to have been a minor either at the time of her father's death, or at the time of the judgment. The prayer of the petitioners is that if there is any widow, within the meaning of the law, one-third of the fund on hand be distributed to her, and the remaining two-thirds in equal shares to all of the adult children and the guardians of such as are minors. Later, this appellant filed separate motions to strike from the files the objections and exceptions filed by way of answer to her final report as the separate objections of Harry D. Myers, for the reason that they did not show any valid objections or exceptions on behalf of said Harry D. Myers. The appellant filed a similar motion, addressed to the separate objections and exceptions of Grace Myers. The appellant also filed a general motion, addressed to the exceptions and objections of her four objectors. Each of these motions was overruled, and exceptions reserved. The appellant then filed a separate demurrer to the objections and answer in behalf of Harry D. Myers, for the reason that it did not state facts sufficient to constitute a cause of defense in his behalf. She also filed a like separate demurrer, addressed to the objections and answer of Grace Myers, and then a demurrer to the answer and objections of the four objectors, taken as a whole, for a like reason. These demurrers were overruled, and exceptions reserved. The appellant then replied to the objections and answer of the appellees addressed to her report. The first paragraph of the reply is a denial, and the second avers, in substance, that Harry D. Myers was about 18 years old at the time of decedent's death, and for about 6 years had been living with other persons, who had practically adopted him as their son, and had been completely emancipated by his father, the decedent, and allowed the benefit of his own earnings, and had received no pecuniary aid or support whatever from his father for about 6 years prior to his death. The reply avers that the other objectors were adults at the time of the father's death, and were receiving no support or aid from him whatever. The prayer of the reply was that the fund be distributed as prayed in the final report. There was a trial upon the issues joined, and a judgment or decree entered admitting this appellant, her three minor children, and Harry D. Myers and Grace M. Myers,-two of the objectors,-to share in the distribution; the appellant to take one-third of the remaining fund, and the five children to share the two-thirds equally. The decree recites that the court finds that these persons are the only ones who suffered any pecuniary loss from the death of the decedent. This appellant filed her motion for a new trial, assigning as error the admission of Harry D. Myers and Grace Myers to the distribution of said fund. This motion for a new trial was overruled.

The errors assigned and relied on here are the overruling of this appellant's motion for a new trial, and rendering a judgment admitting Grace M. Myers and Harry D. Myers to share in the distribution of the funds in the hands of appellant.

An action for damages for death occasioned by negligence depends wholly upon statute. In some form, this right has existed in this state since 1852. Section 784, p. 205, 2 Rev. St. 1852; section 784, p. 330, 2 Gav. & H. St.; page 309, 2 Rev. St. 1876; page 241, Acts 1881; page 405, Acts 1899; section 285, Burns' Rev. St. 1901; section 284, Horner's Rev. St. 1901, Under these statutes, it has been held, whenever the question has arisen, that there could be no recovery except for pecuniary loss; and, if there are no survivors who can be shown to have sustained such loss, there is no right of action. Railroad Co. v. Tindall, 13 Ind. 366, 74 Am. Dec. 259;Pennsylvania Co. v. Lilly, 73 Ind. 252;Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Railroad Co. v. Wright, 134 Ind. 509, 34 N. E. 314;State v. Walford, 11 Ind. App. 392;39 N. E. 162;Diebold v. Sharp, 19 Ind. App. 474, 49 N. E. 837; Railroad Co. v. Cregan, 23 Ind. App. 1, 54 N. E. 767. The amount recovered in such an action is a trust fund in the hands of the administrator for the benefit of those who, under the statute, are beneficiaries, and constitutes no part of the general estate of decedent, for the benefit of the creditors or heirs generally. Railroad Co. v. Hendricks, 41 Ind. 48;Stewart v. Railroad Co., 103 Ind. 44, 2 N. E. 208; Railroad Co. v. Cregan, 23 Ind. App. 1, 54 N. E. 767;Hilliker v. Railroad Co., 152 Ind. 86, 52 N. E. 607; Railroad Co. v. Hosea, 152 Ind. 412, 53 N. E. 419. Distribution of the funds received must be made in the same manner as personal property of decedent is distributed. Railroad Co. v. Hendricks, supra; Paulmier v. Railroad Co., 34 N. J. Law, 152; Haggerty v. Railroad Co., 31 N. J. Law, 349; Coleman v. Hyer (Ga. 1901) 38 S. E. 962; Railroad Co. v. Cooper, 22 Ind. App. 459, 53 N. E. 1092, 72 Am. St. Rep. 319;Thornburg v. Strawboard Co., 141 Ind. 443, 40 N. E. 1062, 50 Am. St. Rep. 334;Drake v. Gilmore, 52 N. Y. 389.

The action from which the fund in question was derived was prosecuted for the benefit of the widow (administratrix) and her three minor children. They alone were mentioned in the complaint. From this it is argued that the damages were necessarily confined to the pecuniary loss sustained by the persons mentioned, and were awarded for their benefit. The action was brought by the administratrix, who was the widow of the decedent. The omission of the names of the children by the former marriage of the decedent was not unintentional, and such omission of itself ought not to deprive them of the right to share in the fund recovered. The injury to the widow and the children of the decedent forms the basis of damages. Had the children of the first marriage asked, in the action for damages, that their names be set out in the complaint as beneficiaries, the court would have granted the request. The same question is here presented that would have arisen...