Hahn v. Moore, 18589

Decision Date05 June 1956
Docket NumberNo. 18589,18589
Citation134 N.E.2d 705,127 Ind.App. 149
PartiesVirgil HAHN and George Traeger, Appellants, v. Herman MOORE, Appellee.
CourtIndiana Appellate Court

Ryan, Chester & Clifford, Valparaiso, John W. Pfaff, South Bend, F. LeRoy Wiltrout, Elkhart, Paul Reed, Knox, for appellants.

Jay E. Darlington, Hammond, for appellee.

KELLEY, Judge.

Appellants assert in their petition for rehearing that we erred in holding that Burns' Stat. §§ 2-404 and 2-217 'are not in pari materia and need not be construed together', and that we thereby contravened the 'later' precedent of the Supreme Court. We will refer to the cases cited by appellants in a subsequent portion of this opinion.

As we understand the contention of appellants, as expressed in their original brief and in the petition for a rehearing, it is not that they urge simply a construction together of the said sections of the statutes in order to arrive at the legislative intent and purpose in the enactment of either, but rather that, under the guise of the doctrine of pari materia, we transplant a limitation provided for in § 2-404 and engraft it upon said § 2-217.

In our original opinion we held that the parent's act, § 2-217, Burns' 1946 Replacement, was clear and unambiguous and that no reason appeared for the application of the doctrine of pari materia. Appellants say that we, by such holding, contravened a ruling precedent of the Supreme Court and cite as establishing such precedent the cases of Berry v. Louisville, Evansville & St. Louis Railroad Co., 1891, 128 Ind. 484, 28 N.E. 182, and Thornbug v. American Strawboard Co., 1895, 141 Ind. 443, 444, 40 N.E. 1062. As a case from our own court they cite Elliott v. Brazil Block Coal Co., 1900, 25 Ind.App. 592, 58 N.E. 736.

We think it meets with general approval to say that a decision is a precedent for the doctrine necessarily involved in it and not necessarily a precedent for the pronouncements of the judge or judges who wrote it. To determine whether a case is a precedent for a stated proposition and therefore to be adhered to under the rule of stare decisis, it is proper to ascertain the exact point or points before the court for adjudication and seek, in the opinion, the doctrine announced or followed by the court, without which the point could not be correctly decided. All else in the opinion is merely the reasoning or explanation of the court and attains the dignity of neither doctrine nor precedent.

The precise question before the court in the Berry case, referred to above, was whether an allegation in a complaint that an infant decedent 'for two months before and at the time of his death * * * was not in the service of his parents, or either of them' was sufficient to show an emancipation of the infant so as to establish the right of the infant's father to maintain the action in his capacity as administrator 'of his deceased minor son.' The court held such allegation to be insufficient. That was the doctrine of that case and the case stands as a precedent for that rule. We did not contravene that precedent by our holding. No such question was before us. In the course of its opinion the court made the statement that it had been decided by the cases referred to by the court that the parent's right section and the wrongful death section of the statute 'are to be construed together'. Such statement was not only unnecessary to the court's decision of the particular question before it, but the cases relied upon by the court to not support the broad statement of the court. We dealt with all such cases in our original opinion. For instance, the court cited and relied upon the case of Louisville, New Albany & Chicago Railway Co. v. Goodykoontz, Guardian, 1888, 119 Ind. 111, 21 N.E. 472, 473, wherein the court said that said two sections were entirely disconnected, and each is to be 'construed independently of the other'. Our research discloses that the Goodykoontz case has been consistently followed and approved down to the latest available citations. The same is found true of the holding in Mayhew v. Burns, 1885, 103 Ind. 328, 2 N.E. 793, which was also relied upon by the court in the said Berry case.


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  • Northern Indiana Public Service Co. v. Otis
    • United States
    • Indiana Appellate Court
    • August 27, 1969
    ...of money. New York Cent. R.R. Co. v. Johnson, Admix., etc., supra; Hahn et al. v. Moore (1956), 127 Ind.App. 149, 133 N.E.2d 900, 134 N.E.2d 705. * * * 'It must also be remembered that the trial judge was in a position to determine whether there was passion and prejudice existent, such as w......
  • Britt v. Sears
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    • Indiana Appellate Court
    • December 29, 1971
    ...Ry. Co. v. Goodykoontz, Guardian (1889), 119 Ind. 111, 21 N.E. 472; Hahn et al. v. Moore (1956), 127 Ind.App. 149, 133 N.E.2d 900, 134 N.E.2d 705 (transfer denied); Mayhew v. Burns (1885), 103 Ind. 328, 2 N.E. The action of the father for the wrongful death of a child is based solely on the......
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    • April 23, 1980
    ...Shane v. Fields, (1963) 135 Ind.App. 353, 190 N.E.2d 195. Hahn v. Moore, (1956) 127 Ind.App. 149, 133 N.E.2d 900, reh. den. (1956) 127 Ind.App. 149, 134 N.E.2d 705. American Optical has failed to rebut that presumption. Further, there is nothing in the record disclosing the jury considered ......
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