Graf v. City Transit Co.

• Decision Date: 01 June 1942
• Docket Number: No. 27678.,27678.
• Citation: 41 N.E.2d 941,220 Ind. 249
• Parties: GRAF v. CITY TRANSIT CO., Inc.
• Court: Indiana Supreme Court

220 Ind. 249

41 N.E.2d 941

GRAF

v.CITY TRANSIT CO., Inc.

No. 27678.

Supreme Court of Indiana.

June 1, 1942.

Action by Joseph A. Graf against the City Transit Company, Incorporated, for damage resulting from injuries sustained by the plaintiff's wife allegedly as result of negligence of the defendant. From an adverse judgment, the plaintiff appeals. Case transferred from Appellate Court June 1, 1942, under Burns' Ann.St. § 4-209.

Judgment reversed with directions to overrule demurrer to complaint and for further proceedings.Appeal from Cass Circuit Court; John B. Smith, Judge.

Landis & Hanna, of Logansport, for appellant.

Smith & Loser and Don L. Smith, all of Indianapolis, for appellee.

SHAKE, Judge.

The appellant brought this cation to recover the pecuniary loss sustained by him on account of injuries suffered by his wife and alleged to have been caused by the negligence of the appellee. The appellee demurred on the specific ground that the complaint disclosed that the action was not commenced within 2 years after it accrued and that it was, therefore, barred by the statute of limitations. The trial court sustained the demurrer, and the appellant refused to plead further and suffered judgment to go against him. The ruling on the demurrer constitutes the only assigned error.

The appellee relies on § 38, Ch. 38, Acts 1881 (Spec.Sess.) § 2-602, Burns' 1933, § 61, Baldwin's 1934, as construed by this court in Mullen v. Town of Newcastle, 1913, 180 Ind. 386, 103 N.E. 1. The statute referred to provides that actions ‘for injuries to person’ shall be commenced within 2 years after they accrue and not afterward. In the Mullen case it was held that an action like the case at bar was ‘grounded on the alleged negligent injury to the person of the wife, and was barred by the same limitation applicable to an action by her’.

The appellant asserts that the Mullen case is unsound and that it was inferentially overruled by this court in Thompson v. Town of Fort Branch, 1931, 204 Ind. 152, 178 N.E. 440, 82 A.L.R. 1413, in which it was held that a parent's action for the wrongful death of a child was not for the personal injury to the child but was for the parent's pecuniary loss resulting therefrom.

The Mullen case was based exclusively upon Maxson v. Delaware, etc., R. Co., 1889, 112 N.Y. 559, 20 N.E. 544, 545, but an examination of the statute under consideration by the New York court reveals that a ‘personal injury’ as defined therein was ‘an actionable injury to the person, either of the plaintiff or of another.’ The court pointed out that this provision of the New York statute was derived from a prior act which defined a personal injury as ‘an actionable injury to the person of the plaintiff, or of his or her wife, husband, child, or servant’ and that there was no apparent legislative intent to change the legal effect of the former statute. It was also observed that another section of the same act provided that ‘an injury to property is an actionable act whereby the estate of another is lessened, other than a personal injury or the breach of a contract.’ The New York court reached the conclusion that a husband's action for expenses incurred and loss of services occasioned by his wife's injuries was an action for personal...