Henschen v. New York Cent. R. Co.

• Decision Date: 01 May 1945
• Docket Number: 28087.
• Citation: 60 N.E.2d 738,223 Ind. 393
• Parties: HENSCHEN v. NEW YORK CENT. R. CO.
• Court: Indiana Supreme Court

60 N.E.2d 738

223 Ind. 393

HENSCHEN v. NEW YORK CENT. R. CO.

No. 28087.

Supreme Court of Indiana

May 1, 1945

Appeal from Marion Superior Court; Ralph Hammel Judge.

Herman L. Ridenour and Robert F. Biehl, both of Indianapolis, for appellant.

Paul N. Rowe, Baker & Daniels, William W. Seagle, Jack C Brown, and James C. Courtney, all of Indianapolis, for appellee.

STARR Judge.

This is an action by the appellant, as administratrix, for damages alleged to have been sustained by reason of the death of her husband, who was killed as the result of alleged negligence of the appellee when a motor truck in which he was a passenger was struck by one of appellee's trains at a highway crossing east of the corporate limits of the city of Indianapolis. The jury awarded appellant $1,000 damages, from which award she prosecutes this appeal.

The only error assigned is the overruling of appellant's motion for a new trial, wherein she urges as grounds for reversal that: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the verdict of the jury is substantially less than the facts and evidence show her actual pecuniary loss to have been; (4) the verdict of the jury awarded plaintiff insufficient damages; and (5) the verdict of the jury is not sustained by sufficient evidence, and is contrary to law, in that plaintiff in this cause was entitled to recover by her complaint, and did so recover, but the verdict of the jury awarded plaintiff substantially less recovery than the facts and evidence warranted, and substantially less damages than the evidence established her actual pecuniary loss to be.

The only question attempted to be raised by appellant in her brief is that the damages are inadequate; that if she was entitled to recover any sum she was entitled to recover a sum much larger than the amount awarded her by the jury. Appellant insists that each of the separate assignments in her motion for new trial properly raises this question. With this we can not agree. This court has determined that under assignments 1, 2, and 5, no question can be raised as to the amount of damages. Thompson v. Town of Fort Branch, 1931, 204 Ind. 152, 178 N.E. 440, 82 A.L.R. 1413. That appellant attempts to specify, in her fifth assignment in said motion for new trial, the particulars in which the verdict is not sustained by sufficient evidence, and is contrary to law, does not change the fact that this assignment is still a reiteration of assignments 1 and 2 in the conjunctive. It is true that in a few cases our Appellate Court has recognized the second assignment above set out as being sufficient to present the question as to the amount of damages. See Klenke, Adm'x, v. New York, etc., R. Co., 1925, 83 Ind.App. 478, 149 N.E. 103. This court at one time also considered the second assignment as being sufficient to present the question as to the amount of damages. Spannuth v. Cleveland etc., R. Co., 1925, 196 Ind. 379, 148 N.E. 410. This rule, however, has been definitely repudiated, as above indicated.

Appellant's assignments 3 and 4 in her motion for new trial can only be an attempt to state grounds therefor under Burns' Stat.Supp. § 2-2406, Baldwin's Supp.1937, Sec. 45-2. This section of the statute reads as follows: 'Inadequate damages--Ground for new trial.--Where a party is entitled to recover by his complaint, and he does so recover, but is awarded substantially less recovery than the facts in evidence show his actual pecuniary loss to be, such erroneous award shall constitute ground for a new trial at the instance of the aggrieved party.'

While the reason for a new trial need not be stated in the language of the statute, merely stating that the verdict awarded insufficient damages, as does assignment number 4, is not the same as saying that the verdict is substantially less than the facts in evidence show her actual pecuniary loss to be. Of these two assignments, only number 3 reasonably apprises the court and the opposite party of the ground on which the new trial is asked, and said assignment number 3 is, therefore, sufficient. Heekin Can Co. v. Porter et al., 1943, 221 Ind. 69, 46 N.E.2d 486.

Appellee insists that said § 2-2406, Burns' Stat. Suppl., Baldwin's Supp.1937, Sec. 45-2, does not make alleged insufficiency of the recovery awarded by the verdict of the jury ground for a new trial in an action such as this, namely, one brought under the wrongful death statute, Burns's Stat.Supp. § 2-404, Baldwin's Supp.1937, Sec. 51.

Although this statute is peculiarly worded we are not inclined to attribute to the phrase 'actual pecuniary loss', as used therein, the narrow and restricted meaning as has been placed upon the similar phrase 'actual pecuniary injury' by the courts of Kentucky. There, in construing this phrase, the court decided that the word 'injury' is synonymous with the word 'loss,' and the phrase 'actual pecuniary injury' means only damages that can be actually and definitely measured in money. See Drury v. Franke, 1933, 247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917; also, Owings' Adm'r v. Gradison Const. Co., 1931, 241 Ky. 5, 43 S.W.2d 327. Rather, we believe the legislature, in using the phrase 'actual pecuniary loss', intended to include damages which are recoverable in an action for wrongful death. Recovery for actual pecuniary loss is really what is sought in such an action. As was said by Judge Gillett in Consolidated Stone Co. v. Staggs, 1905, 164 Ind. 331, 337, 73 N.E. 695, 697, in referring to the measure of damages for wrongful death: 'Under a statute like ours, which gives a new right of action, distinct from that which the deceased might have maintained, the measure of damages is compensation for the pecuniary loss sustained by the party or parties entitled to the benefit of the action. 'The sole inquiry is, how many dollars are necessary to compensate the beneficiaries for the pecuniary loss caused to them by the wrongful death?' * * * The damages are not to be estimated at the value of the life lost, but at such a sum as will compensate the persons on whose behalf the action is brought for the pecuniary injury which they have sustained by the death.'

By this § 2-2406, Sec. 45-2, of the statute it was intended to provide grounds for a new trial in all other tort actions where the award of damages is inadequate, just as such ground was already provided in tort actions for injury to or detention of property by the fifth cause for a new trial in said § 2-2401, Burns' Stat.1933, Baldwin's 1934, Sec. 368. So construed, this section repeals, by implication, the first portion of § 2-2402, Burns' Stat.1933, Baldwin's 1934, Sec. 369, which provides that a new trial shall not be granted on account of the smallness of the damages in actions for an injury to the person or reputation.

In order to determine whether this verdict is inadequate we must apply the same rules as would be applied if it were...