Hecht v. The Ohio And Mississippi Railway Company

• Decision Date: 27 October 1892
• Docket Number: 14,960
• Parties: Hecht v. The Ohio and Mississippi Railway Company
• Court: Indiana Supreme Court

32 N.E. 302

132 Ind. 507

Hecht v. The Ohio and Mississippi Railway Company

No. 14,960

Supreme Court of Indiana

October 27, 1892

From the Jefferson Circuit Court.

Judgment affirmed, with costs.

C. A Korbly and W. O. Ford, for appellant.

W. M Ramsey, L. Maxwell, R. Ramsey, J. McGregor and E. Barton, for appellee.

OPINION

Olds, J.

Abraham Hecht, in his lifetime, received an injury on account of the negligence of the appellee company, from which injury he afterwards died. The appellant was appointed administrator of his estate and brought this action. The complaint is in one paragraph, and alleges the necessary facts to make it a good complaint under section 284, R. S. 1881. Among other facts it alleges that the injury produced Bright's disease of the kidneys, from which disease he remained sick and lingered until the 27th day of November, 1887, at which time he died of said disease in consequence of the negligence of the appellee.

The appellee answered in four paragraphs, the first and fourth afterwards being withdrawn.

The second paragraph alleged that the intestate had recovered a judgment against the defendant for his injuries in his lifetime, and that an appeal was taken from the judgment to the Supreme Court and the judgment by that court affirmed and the same had been paid.

The third set out a complete record of the proceedings and judgment in the cause prosecuted by the intestate, and in addition alleged that on the trial of said cause the intestate was permitted to show that he was suffering with Bright's disease of the kidneys, and that the same was the result of his injuries, and that said disease would probably prove fatal or at least shorten his life, and that he was suffering from other afflictions and diseases caused and superinduced by said injuries.

Separate demurrers were filed to the said second and third paragraphs of answer and overruled. Appellant refusing to plead further, judgment was rendered in favor of the appellee on demurrer. The rulings on the demurrer are assigned as error.

Section 284, supra, reads as follows: "Where the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

Section 282, R. S. 1881, provides that "A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person." The clear intention of the Legislature, as expressed by these sections, is in effect that when the injury to the person causes the death of such person the action shall survive in favor of the person in whose favor an action is given for the injury causing the death. An action for a cause of action liquidated and satisfied can not survive in favor of any person. Section 284, supra, provides in terms that the action may be maintained by the personal representatives of the deceased for the wrongful act or omission of another if the deceased might have maintained an action, had he lived, for such wrongful act or omission. That is to say, if the deceased, at the time of his death, might have maintained such action, but the deceased having prosecuted to final judgment an action for such wrongful act or omission, and the judgment having been paid and received by him, he at the time of his death could not have maintained an action for such wrongful act or omission, as the right of action in his favor had merged into the judgment which was satisfied, hence no action exists in favor of the personal representatives of the deceased by virtue of the latter section. The position we have stated we think well supported by authority.

In an action by the deceased in his lifetime, he is entitled to recover full compensation for the injuries sustained, including injuries for disease superinduced by reason of the injuries.

In the case of Ohio, etc., R. R. Co. v. Hecht, 115 Ind. 443, 17 N.E. 297, this court says: "Where a disease caused by the injury supervenes, as well as where the disease exists at the time of the injury, and is aggravated by it, the plaintiff is entitled to full compensatory damages." See authorities cited in this decision. In such an action the injured party is entitled to recover full compensation for all the injuries which were the natural consequence of the wrongful act.

It was certainly not the intention of the Legislature that where the person guilty of the wrong has been once subjected to a suit by the injured party in his lifetime, and compelled to pay all the damages resulting from the injuries sustained by the wrongful act, he should again be liable to an action in favor of the personal representatives of the injured party after his death, and be again compelled to respond in damages for the same act.

It is suggested by counsel for the appellant that the answers are not good, for the reason that the parties are not the same; that the judgment was on a different cause of action, and that different facts will be presented in this action, and different evidence be required to sustain them. But we do not think these objections well taken. The parties are the same except that the injured party, who has died, is represented by his personal representative. It is true the statute provides that the proceeds shall go to his widow or children, or next of kin, but the administrator "stands in the shoes" of the deceased. The cause of action is the same. If the administrator recovers he must do so by reason of the same wrongful act on the part of the appellee company that enabled the intestate to recover.

It is suggested that the measure of damages is not the same, that the intestate might have recovered for suffering, loss of time, medical attendance, etc.; that the right to recover for these things died with him, and that by the statute a new cause of action is given for new injuries to other persons. By the survival of the action the right of recovery and measure of damages must necessarily be different, but the gist of the action, the principal and paramount right of recovery, is on account of the destruction of the capacity and power of the intestate to earn money and accumulate wealth for his own support and benefit, and the support and benefit of his family or next of kin.

The central and paramount thing or item for which damages may be recovered is the same whether the recovery be by the intestate in his lifetime or by his personal representative after his death. In minor particulars the measure of damages differs, but this does not warrant such a construction of the statute as contended for by counsel for appellant.

It is further urged that the former judgment is not a bar for the reason that different facts are here presented and different evidence is required to sustain the suit. While it may be true that some items of evidence may be competent or even necessary in one case that are not in the other, and the method of proof may differ, yet it remains a fact that the action in either case is based on the negligence of the appellee causing the same and identical injury to the appellant's intestate, and the damages sustained in either case grow out of the injury to the intestate caused by the negligence of the appellee. It is contended that the section of the statute, section 284 supra, gives...