Jackson v. Pittsburgh, C., C. & St. L. Ry. Co.

• Decision Date: 07 February 1895
• Citation: 39 N.E. 663,140 Ind. 241
• Court: Indiana Supreme Court
• Parties: JACKSON v. PITTSBURGH, C., C. & ST. L. RY. CO.

140 Ind. 241

39 N.E. 663

JACKSON

v.PITTSBURGH, C., C. & ST. L. RY. CO.

Supreme Court of Indiana.

Feb. 7, 1895.

Appeal from superior court, Marion county; P. W. Bartholomew, Judge.

Action by Gaylord M. Jackson against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Wm. V. Rooker, for appellant. Chambers, Pickens & Moores, for appellee.

MONKS, J.

This is an action brought by the appellant against the appellee for negligently killing his child, aged one year. The complaint is in three paragraphs, each of which charges as an element of damages that appellant incurred and paid $100 necessary expense in the burial of said child. A demurrer to each paragraph for want of facts was sustained, and exception taken. Judgment was rendered on demurrer against appellant.

The errors assigned call in question the ruling of the court below as to each paragraph of the complaint. It is averred in each paragraph that the alleged negligent killing of the child occurred in the state of Ohio. There is no averment in the complaint that the common law of Ohio had been changed, or that any statute was in force there which authorized the father to maintain an action for damages for the death of his child. There being no allegation that there is such a statute, the presumption is that the common law on this subject prevails in that state. Smith v. Bank, 29 Ind. 161, and authorities cited. The right, therefore, of the appellant to recover depends upon the common law, and not upon any statute. Busw. Pers. Inj. § 28. It is settled law that a civil action would not lie at common law for causing the death of a human being. Gann v. Worman, 69 Ind. 461;Burns v. Railway Co., 113 Ind. 169, 15 N. E. 230; Baker v. Bolton, 1 Camp. 493; Carey v. Railroad, 1 Cush. 475; Cooley, Torts, pp. 15, 16, 307; Hyatt v. Adams, 16 Mich. 179; 1 Shear. & R. Neg. § 124; Deer. Neg. § 387, Counsel for appellant admit the rule, but contend that expenses necessarily incurred and paid by the appellant in the burial of the child could be recovered at common law, and that such averment in the complaint renders it sufficient to withstand the demurrer. Could the father recover at common law the necessary expense incurred and paid in the burial of his child from the wrongdoer whose negligence caused its death, when the same was instantaneous, or practically so? The rule at common law is that a parent may recover from a wrongdoer damages for depriving him of the services of his child upon the same principle that the master recovers for loss of services of his servant. When the act of the wrongdoer which deprives the father of the services of his child causes its death, the father may recover for the services of the child from the time of the injury until its death, and may also recover any incidental damages he may have suffered, such as medical attendance, care, and nursing up to that time. Binford v. Johnston, 82 Ind. 431;Mayhew v. Burns, 103, Ind. 329, 2 N. E. 793;Dennis v. Clark, 2 Cush. 347;Hyatt v. Adams, 16 Mich. 180; Cooley, Torts, 307, 308; Busw. Pers. Inj. §§ 12, 13. But when death is instantaneous, or practically so, no redress was possible at common law. Osborn v. Gillett, L. R. 8 Exch. 88; Mayhew v. Burns, supra, 103 Ind. 330, 2 N. E. 793; Hyatt v. Adams, supra; Cooley, Torts, 308; Busw. Pers. Inj. § 15. Under these authorities the appellant cannot, in this case, recover any damages on account of the death of his child. The burial expenses alleged being caused by the death of the child, it necessarily follows that appellant cannot recover therefor. Funeral expenses are recovered in this class of cases by virtue of the statute. Murphy v. Railroad Co., 88 N. Y. 445 Counselfor appellant urges that this court has held that such damages are recoverable at common law, and cites: Pennsylvania Co. v. Lilly, 73 Ind. 252;Binford v. Johnston, 82 Ind. 426;Mayhew v. Burns, 103 Ind. 329, 2 N. E. 793. In the case of Pennsylvania Co. v. Lilly, supra, which was an action by the father to recover damages under section 266, Rev. St. 1881 (section 267, Rev. St. 1894), Niblack, J., speaking for the court, said: “It is well settled that in an action by a parent for the death of his child he is entitled to recover only for the pecuniary injury he has sustained,...