Hahn v. Moore

• Decision Date: 19 April 1956
• Docket Number: No. 18589,18589
• Parties: Virgil HAHN and George Traeger, Appellants, v. Herman MOORE, Appellee.
• Court: Indiana Appellate Court

Page 900

133 N.E.2d 900

127 Ind.App. 149

Virgil HAHN and George Traeger, Appellants, v. Herman MOORE, Appellee.

No. 18589.

Appellate Court of Indiana, In Banc.

April 19, 1956.

Rehearing Denied June 5, 1956.

Ryan, Chester & Clifford, Valparaiso, Paul Reed, Knox, F. LeRoy Wiltrout, Elkhart, for appellants.

Jay E. Darlington, Hammond, for appellee.

KELLEY, Judge.

Action by appellee to recover of appellants damages resulting from the death of his eight-year old son which, allegedly, was caused by the negligence of appellants on February 11, 1949. The verdict of the jury was for appellee as against both appellants and assessed his damages at $20,000. Consistent judgment followed.

The several new trial motions of appellants, as presented to this court, undertake to secure our consideration and determination of only two asserted errors, namely: that the court erred in refusing to give appellants' respective, but identical, tendered instructions No. 13 and 14, and that the assessment of damages by the jury is excessive.

Said refused identical instructions No. 13 and No. 14 proposed to tell the jury that '* * * in no event can the amount of plaintiff's (appellee's) recovery exceed $10,000.00.' It is the contention of the appellants that the amount of damages recoverable by a father for the death of his child is limited to $10,000 by the act commonly referred to as the 'Wrongful Death Act', the same being Acts 1881 (Spec. Sess.), Ch. 38, § 8, p. 240, as amended, Burns' 1946 Replacement, § 2-404. More particularly, they urge in the main that said wrongful death act and the act giving the parent a right of action for the death of his child, Acts 1881 (Spec. Sess.), Ch. 38 § 29, p. 240, Burns' 1946 Replacement, § 2-217, were enacted at the same session of the legislature as different sections of the same act, have a common purpose, and, therefore, are in pari materia and must be construed together so as to give effect to each; and that it was the intention of the legislature to place a limitation on the damages recoverable by the parent.

Since the enactment of the parent's action statute and the wrongful death act in 1852 and the re-enactment thereof in 1881, our court several times endeavored to construe the parent's action statute by application of the doctrine of pari materia, whereby provisions of the wrongful death act were, when deemed expedient, carried over and by judicial fiat, engrafted upon the parent's action statute. In Pittsburgh, Fort Wayne & Chicago Railway Company v. Vinings, 1867, 27 Ind. 513, the court, on petition for rehearing, declared that the two sections 'must therefore be construed together' and proceeded (in what seems to be pure obiter dicta) to implant in the parent's right section the provisions of the wrongful death act. The rule of construction adopted by the court in the said Vinings case was followed in Cincinnati, Hamilton & Dayton R. R. Co. v. Chester, 1877, 57 Ind. 297 and the holding of the latter case was adhered to in Gann v. Worman, 1880, 69 Ind. 458.

Apparently, the court in the three cases last referred to failed to notice the announcement of the court in the earlier case of Ohio & Mississippi Railroad Company v. Tindall, 1859, 13 Ind. 366, wherein the court not only confirmed the right of the deceased child's mother, the father having died, to maintain the action for damages in her name but, in answer to the contention that the later wrongful death section repealed the earlier parent's right action on the ground of repugnancy, significantly observed that the former (wrongful death) statute applied to cases of adults, and the latter (parent's action) to cases of infants.

In Mayhew v. Burns, 1885, 103 Ind. 328, 2 N.E. 793, the court, by modifying the Gann v. Worman case and the other cases giving like construction to the said statutes, seems to have dispelled the idea of interdependence of the two statutes referred to and held that they created distinct and independent rights. The court reasoned that the parent's action section conferred on the parent a new and independent right of action for lost services of his deceased child rather than a mere designation of the parent as the proper party in whose name the right to damages under the wrongful death section should be enforced for the benefit of the next of kin. The construction of the statutes given in the Burns case was followed in Louisville, New Albany & Chicago Railway Company v. Goodykoontz, Guardian, 1888, 119 Ind. 111, 21 N.E. 472, 473, wherein the court, in pungent language, stated: 'Section 284 [wrongful death act], which gives a right of action to the personal representatives for the exclusive benefit of the widow and children, or next of kin, is entirely disconnected from section 266 [parent's action], and exerts no sort of influence upon the construction of or rights conferred under the latter section. Mayhew v. Burns, supra. The two are not to be confused or confounded with each other, but each is to be construed independently of the other.' (Our emphasis.)

The right of a parent to the services of his minor child is a property right and the statute, Sec. 2-217, Burns' 1946 Replacement, gives the parent, in his own right, a cause of action for loss of such services or other pecuniary injury occasioned by personal injuries to or the death of his minor child, which action is not one for injury to the person but for injury to property within the meaning of Sec. 2-601, Burns' 1946 Replacement. Thompson v. Town of Fort Branch, 1931, 204 Ind. 152, 178 N.E. 440, 82 A.L.R. 1413; Graf v. City Transit Company, Inc., 1942, 220 Ind. 249, 41 N.E.2d 941. See, also, Merritt v. Economy Department Store, Inc., Ind.App.1955, 128 N.E.2d 279.

It thus has been demonstrated that attempts have been made from time to time to tack onto the parent's action section of the statute various parts and provisions of the wrongful death act and that all such endeavors have been repudiated as predicated upon the erroneous theory that the parent's act was subordinate to and dependent upon the wrongful death act. The court in the earlier cases was apparently lead into error by the failure to appreciate that the parent's right arising from the loss of services of his minor child is a property right based upon the pecuniary loss suffered by the parent when wrongfully deprived thereof, while the right of the widow or next of kin to recover, through the personal representative, for any injury they may have sustained by reason of the death of an adult is grounded upon their pecuniary interest in the life of the decedent.

During the span of time from the enactment of the parent's action statute in 1852 to date of the occurrence giving rise to this action, February 11, 1949, a period of 97 years, the act remained unaltered by the legislature. It was reenacted at the special session in 1881 but without change in the wording or context thereof. It must be presumed, of course, that the legislature was aware of the holdings in Mayhew v. Burns, 1885, and Louisville, etc., R. R. Co. v. Goodkoontz, 1888, supra, to the effect that the parent's action section and the wrongful death section were entirely disconnected and without influence one upon the other and that they created distinct and independent rights. If the legislature had considered such construction by the court to be contrary to its will and that the limitations provided in the wrongful death act should also limit the parent's action section, it would have been a simple matter for it to have so provided. The absence of such action by the legislative body logically warrants the conclusion that its intent with reference thereto had been adequately expressed by the court. We may here observe that although the legislature, in 1951, amended the parent's act in certain respects (see Sec. 2-217, Burns' 1955 Cum. Pocket Suppl.), the act, in the respects now being considered, remains as it was prior to the amendment.

No sound reason has been advanced to sustain the proposal either that a parent should be limited in the amount of his recovery by the provisions of the wrongful death act or that we are authorized to judicially legislate such fact. To grant that the limitation of recovery provided for in the wrongful death act should be, by judicial construction, wrought into the parent's action section would, of necessity, result in a like transposition of other provisions of the wrongful death act, such as, for instance, the two-year limitation for commencement of the action and that the damages must inure to the benefit of the widow and children, if any, or the next of kin, and be distributed as personal property of the decedent. That such provisions do not apply to the parent's action was established in Graf v. City Transit Company, Inc., 1942, supra, and Mayhew v. Burns, 1885, supra.

The only Indiana case we have discovered wherein the court gave any indication that the limit of recovery provided for in the wrongful death act applied to the parent's action section is Pittsburgh, Fort Wayne & Chicago Railway Company v. Vinings, 1867, supra. In its opinion on the petition for rehearing the court there said that the two sections must be construed together and that the general terms of the wrongful death act, including the $5,000 limitation, applied to the parent's action section. However, as we have already pointed out, that holding was modified, if not, in fact, completely refuted, in Mayhew v. Burns, 1885, supra.

The parent's action section is clear and unambiguous. It is separate, distinct, and independent of the wrongful death act. There appears, in this case, no reason for construction or the application of the doctrine of pari materia. It follows that the court committed no error in refusing the requested instructions.

Appellants' brief quotes, in effect, the rule that the measure of damages in a case of this kind is the value of the child's services from the time of death until he...