Hamilton v. Jones

• Decision Date: 24 September 1890
• Docket Number: 15,504
• Citation: Hamilton v. Jones, 125 Ind. 176, 25 N.E. 192 (Ind. 1890)
• Parties: Hamilton, Administrator, v. Jones, Administratrix
• Court: Indiana Supreme Court

25 N.E. 192

125 Ind. 176

Hamilton, Administrator, v. Jones, Administratrix

No. 15,504

Supreme Court of Indiana

September 24, 1890

From the Fayette Circuit Court.

The judgment is affirmed, with costs.

G. C Florea, L. L. Broaddus and E. J. Smith, for appellant.

J. I Little, D. W. McKee and J. M. McIntosh, for appellee.

OPINION

Mitchell, J.--

Hamilton, as administrator of the estate of Katie Hood, filed a claim against the estate of Henry Lee Jones, and alleged, as a cause of action, that the decedent, Jones, unlawfully, feloniously, and purposely, killed and murdered the plaintiff's intestate, by means described, and that he prosecuted the action for the benefit of the next of kin of his intestate.

The question is whether or not the cause of action, given by section 284, R. S. 1881, to the personal representative for the benefit of the widow and children, or next of kin of one whose death has been caused by the wrongful act or omission of another, abates upon the death of the wrong-doer.

The cause of action is plainly one which, according to the common law, would not have survived either the death of the injured party or the wrong-doer.Boor v. Lowrey,103 Ind. 468(53 Am. Rep. 519, 3 N.E. 151, and note);Hess v. Lowrey,122 Ind. 225, 23 N.E. 156.It is equally plain that by force of section 284, R. S. 1881, which creates the right of action, it survived the death of the plaintiff's intestate.Did it also survive the death of the wrong-doer?

Our attention has not been called to any decision of this court directly in point, but uniformly, so far as we have discovered, the question involved has been decided adversely to the plaintiff in all those States where it has arisen.

Thus, in Hegerich v. Keddie,99 N.Y. 258, 1 N.E. 787, an action brought by an administratrix to recover damages for the death of her intestate, which was caused by the alleged negligence of defendant's testator, it was held, after most careful and elaborate examination, that the action abated.

In this case, Yertore v. Wiswall,16 How. P. R. 8, cited and relied on bythe appellant, was overruled and distinguished.Ott v. Kaufman,68 Md. 56, 11 A. 580, was an action by a husband to recover damages for an assault and battery of his wife, whereby he lost her services, and was obliged to expend money for medical and other attendance upon her.Quoting the language of Lord Mansfield, that "the wrong and the wrong-doer were buried together,"the court held that under the Maryland statute the action did not survive.In New York, under a statute which provides, in substance, that actions for wrongs done to the "property rights and interests" of another shall survive, and not abate by the death of the plaintiff or defendant, it has been held that where a wife was injured through the negligence of another, an action brought by the husband to recover damages for loss of services, and for expenses incurred for medical attendance, did not abate on the death of the plaintiff, for the reason that the injury, though to the person of the wife, affected the property rights and interests of the husband.Cregin v. Brooklyn, etc., R. R. Co.,75 N.Y. 192;Cregin v. Brooklyn, etc., R. R. Co.,83 N.Y. 595.

Russell v. Sunbury,37 Ohio St. 372, was an action against the estate of a deceased person for wrongfully causing the death of another, and it was held that the right to commence an action for wrongfully causing death, under the statute of that State, which required compensation for causing death by wrongful act, neglect, or default, abates by the death of the wrong-doer.

Moe v. Smiley,125 Pa. 136, 17 A. 228(3 Lawyers'Rep. An. 341), was an action against an estate to recover damages for killing the plaintiff's intestate, and it was held that an action for damages, given by the statute of Pennsylvania to the widow, children or next of kin, of one whose death had been occasioned by unlawful violence or negligence, could not be maintained against the executor or administrator of the wrong-doer, notwithstanding an express provision of the Constitution of the State which declared in effect that in case of injuries resulting in death the cause of action should survive.Speaking of the constitutional provision the court said: "This provision plainly means that in such cases the right of action shall survive to the personal representatives of the injured party; not that...