Northern Indiana Power Co. v. West

• Decision Date: 26 March 1941
• Docket Number: 27479.
• Citation: 32 N.E.2d 713,218 Ind. 321
• Parties: NORTHERN INDIANA POWER CO. v. WEST.
• Court: Indiana Supreme Court

32 N.E.2d 713

218 Ind. 321

NORTHERN INDIANA POWER CO. v. WEST.

No. 27479.

Supreme Court of Indiana

March 26, 1941

Appeal from Circuit Court, Whitley County; Sumner Kenner, Special judge.

Barrett Barrett & McNagny and Leigh L. Hunt, all of Fort Wayne and Evans & Hebel, of Indianapolis, O. S. Boling, of Indianapolis, Gates & Gates, of Coloumbia City, for appellant.

Donald R. Mote, of North Manchester, Bloom & Bloom, of Columbia City, and Oscar F. Smith, of Indianapolis, for appellee.

SHAKE Judge.

The first question presented by this appeal is revealed by a statement of the facts taken from the record. Harry O. West met his death by an accident arising out of and in the course of his employment as the servant of the Northern Indiana Telephone Company. He was survived by his widow, with whom he was living at the time of his death, and their five children all under nine years of age, one of whom was posthumous. This action was brought by the widow, as administratrix of her husband's estate, for the use and benefit of herself and her children, upon the theory that her husband's death was proximately caused by the negligence of the appellant. During the pendency of the action in the court below, the appellee, in her individual capacity, joining with her children, made claim against the telephone company before the Industrial Board of Indiana for death benefits under The Indiana Workmen's Compensation Act of 1929. Acts 1929, ch. 172, § 40-1401 et seq., Burns' 1933, § 16412 et seq., Baldwin's 1934. The last-mentioned proceeding resulted in a final award of compensation in favor of the claimants and against the telephone company. The compensation awarded was not paid, but the Travelers Insurance Company, which carried the employer's risk, brought suit against the appellant to recover the amount for which said insurance company was made liable, and that action is pending.

The appellee contends that the remedies provided by the Compensation Act are merely cumulative and do not preclude recovery from a third party tort-feasor under the wrongful death statute, except upon the single contingency that compensation benefits have been accepted by the claimants. The appellant asserts, on the other hand, that since dependents have the right under the statute to elect whether they will take compensation or collect damages from the responsible tort-feasor, and since dependents under the Compensation Act are not necessarily the same persons as those for whose benefit an action may be prosecuted under the wrongful death statute, the personal representative of a decedent's estate cannot maintain such an action as that with which we are presently concerned. In other words, the appellant says that the appellee is not the real party in interest.

It has long been the settled policy of this state that 'every action must be prosecuted in the name of the real party in interest.' § 2-201, Burns' 1933, § 16, Baldwin's 1934. The only exception to this rule that need be noted here is that 'an executor, administrator * * * may sue without joining with him the person for whose benefit the action is prosecuted.' § 2-202, Burns' 1933, § 17, Baldwin's 1934. To determine whether the appellee is the real party in interest as to the subject-matter of this litigation requires a consideration of the statutes and decisions pertaining to actions of this kind.

Our wrongful death statute provides that such an action shall be prosecuted by the personal representative of the decedent and the damages (except as to certain expenses that may have been incurred) 'must inure to the exclusive benefit of the widow or widower (as the case may be) and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.' § 2-404, Burns' 1933, § 51, Baldwin's 1934. Under this statute the damages are not apportioned among those entitled to participate therein, but are assessed in gross and distributed in the same manner as the personal estate of a decedent. Baltimore, etc., R. Co. v. Ray, 1905, 36 Ind.App. 430, 73 N.E. 942. The damages are limited to the pecuniary loss suffered by those for whose benefit the action may be maintained. Indianapolis Traction, etc., Co. v. Lee, Ex'r'x, 1918, 67 Ind.App. 105, 118 N.E. 959. A minor child may recover damages for the loss of a parent until such child reaches the age of 21 years. Cincinnati, etc., R. Co. v. Little, Adm'r, 1921, 190 Ind. 662, 131 N.E. 762.

Dependency under the Compensation Law is defined in detail in § 38 of the act. § 40-1403, Burns' 1933, § 16414, Baldwin's 1934. It will suffice for our present purpose to take note of some of the pertinent provisions of this section. Compensation is denied married children and children over 18 years of age who are neither physically nor mentally incapacitated from earning their own support. If the employee is survived by one or more persons wholly dependent, those partially dependent are not entitled to receive compensation. If there is no one wholly dependent and more than one partially dependent, benefits are divided among the partial dependents, not under the laws of descent, but according to the relative extent of dependency as determined by the Industrial Board. A widow forfeits all right to compensation by remarriage.

It is at once apparent, therefore, that there are substantial differences between the wrongful death statute and the Compensation Act as regards those who may be benefited thereunder. As has already been observed, an administrator's action inures to the benefit of partial dependents as well as those wholly dependent; while compensation is paid exclusively to those wholly dependent, if there are such. If the sole survivor of a deceased employee is a daughter who marries subsequent to her father's death, she would have no right to compensation, though an action for damages on her behalf might be maintained against a third party by the personal representative of her father's estate under the terms of the wrongful death statute. If such daughter does not marry, but was past 18 years of age at the time of her father's death and not physically nor mentally incapacitated from earning her own support, the result would be the same. In the instant case, the widow under the Compensation Act shares death benefits equally with her five dependent children; but under the wrongful death statute she is entitled to one-third of the recovery, or twice the share allotted her under the compensation schedule. It might well occur, also, that those who elect to take compensation would be antagonistic to those on whose behalf the personal representative may prosecute an action under the wrongful death statute. This situation calls for a careful scrutiny and interpretation of the provisions of the Compensation Act.

Actions for personal injuries did not survive and actions for wrongful death did not exist at common law. Our action for wrongful death, though of long standing, is therefore of statutory origin, and it may be controlled or abolished by the General Assembly. Among the disjunctive objectives of our Compensation Law, as set forth in the title of the act, is 'to abolish certain personal injury litigation.' If the personal injury litigation referred to in the title of the act may be said to embrace certain actions for wrongful death, it was within the province of the Legislature to abolish such actions in and by the enactment of the Compensation Law. The title of a legislative enactment is not required to be as specific as the terms of the act, and we are of the opinion that actions for wrongful death may reasonably be construed as embraced in the clause 'certain personal injury litigation,' since such actions for wrongful death necessarily constitute litigation resulting from personal injuries.

It is provided in § 6 of the Compensation Act that: 'The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death.' § 40-1206, Burns' 1933,§ 16382, Baldwin's 1934.

Under the Constitution of this state (§ 21, Article 4), an act may not be expressly amended without setting out the section at full length, and there may be no amendment by implication; but the enactment of a law specifically and fully covering the same subject-matter that is covered or embraced in a general law, or any part of a general law, may create an exception to the general law. Taelman v. Board of Finance of School City of South Bend, 1937, 212 Ind. 26, 34, 6 N.E.2d 557, 561. It would therefore appear that by the enactment of the Compensation Law, the General Assembly merely created exceptions as to those who may not be regarded as dependents under said act, and left them without any remedy under the wrongful death statute.

Section 13 of our Compensation Act reads as follows: 'Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person that the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against the employer for compensation and against such other person to recover damages at the same time, but he or they shall not collect from both; and, if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of...