Mayhew v. Burns

• Citation: 2 N.E. 793, 103 Ind. 328
• Case Date: October 27, 1885
• Court: Supreme Court of Indiana

103 Ind. 328
2 N.E. 793

Mayhew
v.
Burns.¹

Supreme Court of Indiana.

Filed October 27, 1885.

Appeal from Allen superior court.

Aldrich & Barrett, for appellant.

Colerick & Oppenheim, for appellee.

Mitchell, C. J.

James Burns brought this action against Sarah Mayhew, to recover damages for wrongfully causing the death of his infant child. Mrs. Mayhew is a married woman, and the wrong complained of is that, being the owner of lot 24, in one of the additions to the city of Fort Wayne, she caused an excavation for a privy vault to be made on her lot, so near the division line between it and lot 23, on which the plaintiff lived, as that two feet of the soil from plaintiff's lot, and the division fence between the two, fell into the excavation. It was averred that the excavation was negligently permitted to remain open and unguarded, notwithstanding the plaintiff, upon discovering its dangerous condition, gave notice to the defendant, and requested that it be made safe. The plaintiff was a widower with five children. The children, with his household, were in the care of his sister-in-law, who was competent to have them in charge. While in her charge, his son aged two years,

[2 N.E. 794]

fell into the excavation, which was filled with water, and drowned. It is alleged that this occurred without fault or negligence on the part of the plaintiff. He claims damages for the loss of the services and society of his child from the time of his death until he should have attained his majority. The action is brought by the father in his own right.

At the threshold we are met with the objection that a father can maintain no action in his own right to recover for the death of his child, or for the lost services of one whose death has been caused by the wrongful act or omission of another. It is said there is no statute in force in this state giving the right, and that none exists by the common law. That it was the settled rule of the common law that the death of a human being could not be complained of as an injury in a civil court, is a proposition universally admitted both in England and in this country. A parent might, and still may, without any statute, recover for loss of services resulting from a wrongful injury to his child, during the period of disability occasioned by such injury, and, if death resulted, for the loss of services during the time intermediate the injury and death. In addition, a parent had his common-law remedy to recover for such incidental damages, as for medical attendance, care, and nursing, up to the time of death, if death resulted. This was upon the theory that the parent was entitled to the services of the child at the time the injury was inflicted, and owed the child the corresponding obligation of care, nursing, and medical attention. If the right to the child's services, or the duty of care and maintenance, was at an end, then no right of action for an injury existed in favor of the parent. Where death resulted instantaneously, or practically so, and no incidental expenses accrued, no action whatever was maintainable by the parent after the death of the child.

The claim which is pressed in the argument is that the complaint counts upon a common-law right, none having been given by statute, it is said; and inasmuch as the injury and death occurred at the same time, and as no incidental expenses are alleged, it is contended the complaint states no cause of action.

The argument that there is no statute giving a right of action to the father for an injury causing the immediate death, or for the lost services of his minor child, is rested mainly, if not entirely, on what is said in Gann v. Worman, 69 Ind. 458. It was said in that case that “there is no statute in this state giving the father the right of action for the lost services of his child after the child's death.” It was also held in that case, as also in one or two others which preceded it, that sections 27 and 784 of the Code of 1852 (sections 266 and 284 of the present Code) were to be construed together, and when so construed it resulted that the right of action given to the parent by section 27 was given, not for his benefit, but as the representative of the deceased child, and that the damages recoverable in an action under that section inured to the benefit of the next of kin under section 784. Pittsburg, Ft. W., etc., Ry. Co. v. Vining, 27 Ind. 513;Cincinnati, H. & D. R. Co. v. Chester, 57 Ind. 297.

The later case of Pennsylvania Co. v. Lilly, 73 Ind. 252, as also the earlier, Ohio & M. R. Co. v. Tindall, 13 Ind. 366, proceeded with apparent

[2 N.E. 795]

recognition of the right by both parties, upon the theory that the parent had the right to recover the value of a child's services, although death in both cases was instantaneous. In the case of Pennsylvania Co. v. Lilly, supra, it was 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, and that the proper measure of damages is the value of the child's services from the time of the injury until he would have attained his majority, taken in connection with his prospects in life, less his support and maintenance. To this may be added, in proper cases, the expenses of care and attention to the child made necessary by the injury, funeral expenses, and medical services.” This last case proceeded upon the theory that the damages thus defined might be recovered by the father in his own right, and nothing was said in relation to either section of the statute above mentioned. The case of Ohio & M. R. Co. v. Tindall, supra, clearly recognized the right of the parent to sue as such. It was then held that, as the mother, the father having died, was entitled to the wages of her deceased son, she was damaged by his death, and might therefore maintain the action. Referring to the statutes above mentioned the court said: “These two statutes may be reconciled and given effect to by holding the latter (784) applicable to the cases of adults, and the former to those of infants.”

The question was suggested incidentally in Binford v. Johnston, 82 Ind. 426. The complaint was held sufficient in that case because it was averred in one of the paragraphs that the father had expended money and rendered services in endeavoring to cure his son, and that he lost his services from the time of the injury to his death. These averments constituted the statement of a good cause of action even at common law, and as it was not necessary to do so, it was not there determined whether or not the statute gave a right of action to a father for the death or lost services of his child after its death.

It would seem fit that the question should have further examination. The statutes involved in the consideration of the question are sections 266 and 284 of the present Code. These sections correspond in all material respects with sections 27 and 784 of the Code of 1852. Section 266 is as follows: “A father (or, in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by a guardian for an injury to his ward, the damages shall inure to the benefit of his ward.” Section 284 enacts that “when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury for the same act or omission. The action must be commenced within ten years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”

[2 N.E. 796]

Do these statutes create distinct and independent rights? Or is the proper construction of the former merely to define who are proper parties for the enforcement of the right conferred by the latter when the death of a child is wrongfully caused? To hold that section 266 does not give a father or mother, under the contingencies stated, an independent right of action for the injury or death of his child, necessarily results in holding that it is of no practical force whatever. It is thus practically abrogated by construction. To say that the right of action given to the father for the injury or death of a child means nothing more than that he is the proper party in whose name the right to damages given under section 284 may be enforced for the benefit of the next of kin, is to say that it gives the father no right at all. Nor does such construction in any manner enlarge or aid the right given under the latter section. That section provides that the personal representative of one whose death has been wrongfully caused may maintain the action. The right of action is not expressly limited to the age or situation of the person whose death has been caused; but the provision that the damages shall inure to the benefit of the widow and children, if any, or next of kin, implies that there are or may be persons in that relation who were dependent upon the deceased, and who are consequently injured by his death. This could hardly occur in case the death was that of a child. It seems to us a forced and unwarranted conclusion to say that, in case the death is that of a child, section 266 is to be looked to for the purpose of ascertaining who is to sue as the representative of the next of kin, while in the case of an adult the personal representative, as defined in section 284, must sue. The reasonable and natural interpretation of the language employed in the first section is to give the parent who sustains injury by the death of his child a remedy for such injury in his own right, while the latter gives to the widow or next of kin,...