Hilliker v. Citizens' St. R. Co.

• Citation: 52 N.E. 607,152 Ind. 86
• Parties: HILLIKER v. CITIZENS' ST. R. CO.
• Decision Date: 10 January 1899
• Court: Supreme Court of Indiana

152 Ind. 86

52 N.E. 607

HILLIKER

v.CITIZENS' ST. R. CO.

Supreme Court of Indiana.

Jan. 10, 1899.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Alpha W. Hilliker, administrator, etc., against the Citizens' Street-Railroad Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

George W. Galvin, for appellant. W. H. Latta, for appellee.

MONKS, C. J.

The appellant brought this action against appellee. The complaint was in two paragraphs, and appellee's demurrer to each paragraph was sustained, and, appellant refusing to plead further, judgment was rendered against him on demurrer. The errors assigned call in question the action of the court in sustaining said demurrer to each paragraph of the complaint.

The first paragraph seeks to recover damages, not for the death of appellant's intestate, but for physical pain and suffering, and the mental anguish caused thereby, being such damages only as the intestate could have recovered if he had lived. It is not averred in said paragraph that the deceased left surviving him a widow or next of kin, but, on the contrary, it is averred that he left no father or mother or next of kin surviving him. The cause of action set forth in said paragraph is in tort, and the facts alleged would have entitled the decedent to a recovery if he had lived. It is admitted by counsel for appellant that at common law the cause of action set up in the first paragraph of the complaint died with the deceased, and did not survive; but it is insisted that the rule in this respect was changed by section 283, Burns' Rev. St. 1894 (section 282, Horner's Rev. St. 1897), and that under the provisions of said section the right of the deceased to recover damages for his physical pain and suffering, and mental anguish caused thereby, did not die with the deceased, but survived, and the same may be recovered in an action by his administrator. It is settled law that, in the absence of statutory enactments, actions for injuries to the person abate on the death of the person injured, and do not survive to the personal representatives. Burns v. Railroad Co., 113 Ind. 169, 170, 171, 15 N. E. 230. Unless, therefore, some statute revives the common-law right of action for a personal injury, and makes it survive the death of the injured person to his representatives, no cause of action is stated in said first paragraph.

In 1852, the legislature adopted a Code of Civil Procedure, section 782 of which, on page 330, 2 Gav. & H. St., is the same as section 283 (282), supra, except that the last-named section contains, in addition to what is set forth in section 782, supra, the words “malicious prosecution.” It was held by this court, in Stout v. Railroad Co., 41 Ind. 149, decided at the November term, 1872, of this court, that a cause of action arising out of injuries to the person died with the person, and did not survive, under the provisions of section 782, supra. The case in 41 Ind. was cited with approval, and the same doctrine declared, in Railroad Co. v. Stout, 53 Ind. 143, 145, decided in 1876. See, also, Hilker v. Kelley, 130 Ind. 356, 358, 30 N. E. 304;Burns v. Railroad Co., 113 Ind. 169, 171, 15 N. E. 230. This was the settled judicial construction of said section 782, supra, in 1881 when the present Code of Civil Procedure was enacted by the legislature. Section 6 of said Code, being section 283, Burns' Rev. St. 1894 (section 282, Horner's Rev. St. 1897) was a re-enactment of said section 782, supra, of the Code of 1852, except that the words “malicious prosecution” were added thereto. It is the settled rule that, when a legislature re-enacts a statute of the state, it adopts also the construction given to such statute by the courts of such state before such re-enactment. End. Interp. St. §§ 368, 371, and cases cited in notes; Suth. St. Const. § 256, on pages 336, 337; Black, Interp. St. pp. 161, 162. It follows, therefore, that the legislature, in reenacting section 782, supra, of the Code of 1852, as section 283 (282), supra, adopted the construction given by this court to section 782, supra, in the cases above cited, and that a cause of action for...