Herrick v. Sayler

Decision Date08 July 1957
Docket NumberNo. 11930.,11930.
Citation245 F.2d 171
PartiesMyron HERRICK, Plaintiff-Appellant, v. David Knight SAYLER, Administrator, etc., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

H. Hugh Kennerk, Fort Wayne, Ind., Hubert E. Wickens, Greensburg, Ind., Wickens & Wickens, Greensburg, Ind., Kennerk & Dumas, Fort Wayne, Ind., of counsel, for appellant.

Lee M. Bowers, Huntington, Ind., Bowers, Feightner & Palmer, Huntington, Ind., of counsel, for appellee.

Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This is a diversity action and the question presented concerns the construction of Indiana law as to the amount of recovery to which plaintiff may be entitled. The District Court dismissed the complaint of the plaintiff upon the ground that the actual amount in controversy was less than the amount necessary to confer jurisdiction, i. e., $3,000. 28 U.S. C.A. § 1332.

Plaintiff brought this action in the United States District Court for the Northern District of Indiana, Fort Wayne Division, seeking to recover damages for the alleged wrongful death of his minor child. It was alleged in the complaint that plaintiff's minor child died on March 25, 1955, as the result of injuries sustained in an auto collision on that day caused by the negligent operation of a motor vehicle by defendant's decedent who also died as a result of injuries sustained in the collision. It was further alleged that plaintiff was caused to expend the sum of $433.77 in funeral expenses for his child. Judgment was demanded in the sum of $5,500.

Indiana law provides that "A father * * * may maintain an action for the injury or death of a child * * *." Ind.Stat.Ann. (Burns' Supp.1955) § 2-217. The measure of damages in an action for wrongful death of a child is the value of the prospective services of the child from the time of death until he would have attained his majority, less the cost of his maintenance and education, and such expenses necessarily incurred by reason of any injury and resulting death, e. g., medical attention and funeral expenses. Jones v. Drewry's, Limited, U.S.A., 7 Cir., 149 F.2d 250; Hahn v. Moore, Ind.App., 133 N.E.2d 900, rehearing denied Ind.App., 134 N.E. 2d 705. At the time of the collision on March 25, 1955, and when this action was commenced on April 5, 1955, Indiana law provided:

"All causes of action shall survive and, may be brought, notwithstanding the death of the person entitled or liable to such action, by or against the representative of the deceased party * * *. In any action for * * * wrongful death surviving because of this section, the damages, if any recovered, shall not exceed the reasonable medical, hospital or funeral expenses incurred, and a sum not to exceed one thousand dollars * * * for any and all other loss, if sustained." (Emphasis added.) Ind.Stat.Ann. (Burns\' 1946 Replacement) § 2-403.

From the nature of the case and the facts alleged in the complaint, if the recovery limitation prescribed by Section 2-403 is applicable to plaintiff's cause of action, the motion to dismiss by the defendant was properly granted. In 1955 Section 2-403 was amended, Ind.Acts 1955, c. 257, § 1; Ind.Stat.Ann. (Burns' Supp.1955) § 2-403, to increase the amount recoverable to $5,000 in addition to the previously recoverable incidental expenses. The amendment was signed by the governor on March 11, 1955, and the governor's proclamation as to legislative acts was on June 30, 1955. The amendment did not contain an emergency clause nor any provision concerning its effective date. In these circumstances Indiana law is clear that the amendment did not become effective until distributed to the several counties as shown by the proclamation of the governor on June 30, 1955, which was subsequent to the date of the alleged tortious act and the commencement of this action. Ind.Const. art. 4, § 28; State ex rel. White v. Grant Superior Court, 202 Ind. 197, 172 N.E. 897, 71 A.L.R. 1354; Schwomeyer v. State, 193 Ind. 99, 138 N.E. 823; State v. Williams, 173 Ind. 414, 90 N.E. 754; Lautenschlager v. Walgamott, 80 Ind. App. 198, 137 N.E. 781.

Plaintiff contends that although the parent's action afforded by Section 2-217 survived the death of the alleged tortfeasor by virtue of Section 2-403 such recovery as he may be entitled to is not subject to the limitation of Section 2-403. If this be true, the motion to dismiss was not properly granted. Jones v. Drewry's, Limited, U. S. A., 7 Cir., 149 F.2d 250; see also Hahn v. Moore, Ind.App., 133 N.E.2d 900, where a jury award of $20,000 against a living tortfeasor was held not excessive. However, plaintiff's contention must fail, for Section 2-403 expressly refers to actions such as the present one. In pertinent part Section 2-403 provides, "In any action for * * * wrongful death surviving because of this section * * *." (Emphasis added.)

Plaintiff insists that the language "wrongful death" refers to actions brought pursuant to Indiana's general wrongful death act, Ind.Stat.Ann. (Burns' 1946 Replacement) § 2-404, and that the parent's action is separate, distinct and independent of the wrongful death act, citing Hahn v. Moore, supra. It was held in the Hahn case that the amount recoverable in a parent's action was not subject to the recovery limitation of Section 2-404 and that the statutory limitation period applicable to actions pursuant to Section 2-404 was not applicable to a parent's action. The action there was against a living tortfeasor and the court did not consider nor have occasion to consider the question presented by the instant case. And surprisingly enough, we have not found any Indiana decision which bears on the specific problem presented here. Plaintiff attempts to derive comfort from the distinction made in the Hahn case that "the parent's right § 2-217 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 § 2-404, 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." 133 N.E. 2d at page 903. Whatever the theory of injury in a parent's action may be, it is an action for damages for the causing of the death of the child by a wrongful act, be that act one of negligence or a wrongful act of a different character. The problems that may arise in regard to Sections 2-217 and 2-404, inter se, do not suggest an answer to the question of the measure or limitation, if any, of recovery in a parent's action where the tortfeasor has died. In Mayhew v. Burns, 103 Ind. 328, 336, 2 N.E. 793, 798, the court, in considering the relationship of the parent's action and the wrongful death act, said, "The two sections above quoted were, we think, intended to accomplish the same end as the statute 9 and 10 Vict. 93, commonly known as `Lord Campbell's Act.'" We think that Section 2-217 is simply a statute authorizing the recovery of damages...

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