Maule Coal Co. of Princeton v. Partenheimer

• Decision Date: 19 June 1900
• Citation: 57 N.E. 710,155 Ind. 100
• Parties: MAULE COAL CO. OF PRINCETON v. PARTENHEIMER.
• Court: Indiana Supreme Court

155 Ind. 100

57 N.E. 710

MAULE COAL CO. OF PRINCETON

v.PARTENHEIMER.

Supreme Court of Indiana.

June 19, 1900.

Appeal from circuit court, Gibson county; O. M. Welborn, Judge.

Action by John Partenheimer against the Maule Coal Company of Princeton. A judgment for plaintiff was reversed. 55 N. E. 751. On petition to substitute another as sole appellee. Denied.

Gilchrist & De Bruler, L. W. Gudgel, and Miller & Elam, for appellant. L. C. Embree, for appellee.

JORDAN, J.

Appellant, among the errors assigned in this appeal, called in question first the sufficiency of the complaint upon demurrer. We sustained this contention, and adjudged, under the facts alleged in the complaint, that appellee could not maintain this action, for the reason that the right of action, if any existed, was lodged under the statute in the surviving widow of the deceased, and not in his administrator. For insufficiency of the complaint in this respect, the judgment recovered by appellee below was reversed, and the cause remanded to the lower court. 55 N. E. 751. Within the 60 days allowed for a petition for rehearing, Josephine Poneleit, widow of appellee's decedent, presented a petition to this court, whereby she prays to be substituted as a party appellee in this appeal in the place of the administrator, the original and sole plaintiff below and sole appellee in this appeal; and she further prays that such proceedings thereafter be had that the judgment heretofore reversed be affirmed in her favor and for her benefit. The administrator also appears, and joins in the prayer of the petitioner, and declares in his application that he waives any rights which he may have in the case. Counsel for the petitioner insists that she ought to be substituted as appellee for the following reasons: “(1) Because there is no substantial reason why such relief should not be granted; (2) because the granting of the relief will result in substantial justice; (3) because the cause of action has been well pleaded, and amply established by proof, and the decedent's family have been in court from the beginning as the real parties in interest; (4) because the judgment will operate as a bar to any subsequent action growing out of the same matter; (5) because the defense that has been waged to the action is purely technical, in no wise affecting the merits of the action; (6) because it is the intent and policy of the law that the family of one whose death has been caused by the wrongful act or omission of another shall be compensated in damages for the loss, and that justice in this respect shall be administered ‘speedily,’ and without delay; (7) because no good purpose can be served by putting these helpless people to the toil, delay, and needless expense of getting together again the witnesses, and...