Hudson v. Houser

• Decision Date: 12 April 1890
• Citation: 24 N.E. 243,123 Ind. 309
• Parties: Hudson v. Houser.
• Court: Indiana Supreme Court

123 Ind. 309

24 N.E. 243

Hudson

v.Houser.

Supreme Court of Indiana.

April 12, 1890.

Appeal from circuit court, Elkhart county; James D. Osborn, Judge.

Action by Calvin P. Houser, administrator of Samuel Houser, deceased, against William Hudson, for the negligent killing of deceased. Judgment for plaintiff, and defendant appeals.

O. L. Ballou, J. D. Ferroll, and Baker, Defrees & Baker, for appellant. A. A. Chapin, R. M. Johnson, and W. L. Penfield, for appellee.

Berkshire, J.

This is an action by the appellee, who was the plaintiff below, to recover damages on account of the alleged negligence of the appellant, resulting in the death of the decedent. The facts alleged in the complaint are, in brief, that on the 17th day of September, 1884, while said decedent was driving along a public highway with a horse hitched to a covered buggy, in which the deceased was seated, a team of the appellant, hitched to a heavy logging wagon in charge of one Samuel Johnson, his servant, was carelessly allowed to run off, and ran over and upon the decedent, who was without fault, thereby mortally wounding him, and, from the injuries thus received, he, in a few days thereafter, died, leaving a widow and five children; and judgment is demanded for $10,000.

Among other allegations in the complaint, to which our attention is particularly called, by a motion to strike the same therefrom, are the following: “And besides they have been made to and have suffered great expense, in the sum of three hundred dollars, for medical attendance and nursing of the decedent after said injuries caused thereby, and in defraying his funeral expenses after his said death, which they have been compelled to pay out of the assets of said estate.” The motion to strike out was overruled, and the appellant saved an exception. The appellant next filed a demurrer to the complaint, which was overruled, and he reserved an exception, after which the cause was put at issue by the filing of an answer in general denial. The cause, being at issue, was submitted to a jury for trial, who thereafter returned a verdict for the appellee in the sum of $2,000, and also returned, with their general verdict, certain interrogatories propounded by the parties, respectively, with their answers thereto. After the return of the verdict and interrogatories the appellant moved the court to require the jury to make different answers to certain of the interrogatories, to which the jury gave the following answers: “No evidence.” The court overruled the motion, and the appellant reserved an exception. The appellant thereupon filed a motion for a new trial, which the court overruled, and he excepted, after which the court rendered judgment for the appellee. Thirty days' time was given to the appellant in which to file a bill of exceptions containing the evidence; and he filed his bill of exceptions, properly signed by the judge who presided at the trial, within the time given. The following are the errors assigned in this court: “ First. The court erred in overruling appellant's motion to strike out parts of the complaint. Second. The court erred in overruling appellant's demurrer to the complaint. Third. The court erred in overruling appellant's motion for a new trial.”

There is no available error because of the ruling of the court in overruling the motion to strike out parts of the complaint, as has been held by this court over and over again. Insurance Co. v. Deming, ante, 86, (decided by this court, April, 1890.) But, if it would have been reversible error to overrule the motion had the appellee offered and introduced evidence to maintain the allegations to which the appellant's motion referred, as no such testimony was introduced or offered, the appellant could not have been prejudiced by the ruling of the court.

The second assigned error is not discussed by appellant's counsel, and is for that reason waived. The only remaining error for our consideration is the third, the overruling of the motion for a new trial. Several causes are alleged in the motion for a new trial; but, as counsel do not urge all of them, we shall only consider those that are urged. The tenth reason alleged on the motion is that the court erred in refusing to allow the appellant to testify generally in his own behalf.

Section 498, Rev. St. 1881, enacts: “In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate.” The case before us falls clearly within the letter of this statute. The suit is brought in the name of an administrator, and involves matters which occurred during the life-time of the decedent. The judgment recovered is a judgment in favor of the estate. It could not be otherwise. It is only in his trust capacity that the administrator can bring and maintain the action; and necessarily the judgment, when recovered, must be for the estate. If the appellant had failed in the action, there would have been a judgment against him for costs, payable in due course of administration. Rev. St. 1881, §§ 590, 2291. But not only does the case fall within the letter of the statute, but clearly within its spirit. We have no recollection of any case where this court has held that a party incompetent because within the letter of the statute was competent within the spirit of the statute, but we have a number of cases where the reverse of this has been ruled. The reason for this is well stated in Malady v. McEnary, 30 Ind. 273: “After a careful consideration of the question, we have come to the conclusion that the appellant was not a competent witness on his own behalf as to matters occurring during the life-time of Ann Malady The evident intent was, in suits by or against heirs, to exclude the testimony of the parties to the action as to any matter which occurred prior to the death of the ancestor, so as to prevent the living from testifying against the representative of the dead. Death having sealed the lips of the one, the law seals the lips of the other.” It is true that the judgment, when recovered, inures to the benefit of the heirs of the decedent, regardless of the rights of creditors; but this affords no sufficient reason why the plain letter of the statute (section 498, supra) should be disregarded. Section 284, Id., which is the section which saves the right of action and authorizes the recovery in the name of the legal representative, expressly provides that the damages recovered shall inure first to the widow and children of the deceased, and next to his next of kin, and be distributed in the same manner as the personal property of the deceased. Distributed how? By the administrator, in the course of administration. The reason of the rule which the said section 498 prescribes is as strong in the class of cases to which the one before us belongs as in any case to which an administrator is a party. What good reason can be offered, as suggested by counsel for the appellee, why section 498, supra, should operate to exclude the appellant as a witness in an action by the administrator against him to recover the value of the buggy in which the deceased was riding, and the worth of the horse which he was driving, when the misfortune overtook him, and the statute be ignored, and the appellant allowed to testify in the more important action, involving the most terrible loss that can befall a family,-the death of the husband and father to whom the members thereof must look for care and support? We apprehend that a satisfactory answer cannot be given to the foregoing inquiry. Ketcham v. Hill, 42 Ind. 64. In Durham v. Shannon, 116 Ind., see page 405, 19 N. E. Rep. 190, the court said: “The evident purpose of the section under consideration was [section 498] to protect the estates of deceased persons from the apprehended danger of permitting the surviving party to a contract or transaction to testify in respect to it after the lips of the other party had been closed by death. Hence a party to a transaction involved in the issue on trial is put under a statutory disability, and is excluded from testifying when the other party to the same matter is disabled by death, and when he is represented in the action which involves such contract or transaction by an executor or administrator, or some one who, in legal contemplation, stands in his place, and when the judgment to be rendered may affect his estate either directly or indirectly.” What is there said, we think, covers the question under consideration. In Railroad Co. v. Swayne, 26 Ind. 477, it was held by this court that an administrator must be appointed in the manner prescribed in the act for the settlement of decedents' estates, if a domestic administrator, to enable him to maintain an action belonging to the class to which the one under consideration belongs. He is, therefore, none the less an administrator in prosecuting an action of this kind than in prosecuting any other action...