Novak v. Chicago & Calumet Dist. Transit Co., 29440

• Decision Date: 07 June 1956
• Docket Number: No. 29440,29440
• Citation: 235 Ind. 489,135 N.E.2d 1
• Parties: Evelyn NOVAK, Administratrix of the Estate of Adolph Karpie, Deceased, Appellant, v. CHICAGO & CALUMET DISTRICT TRANSIT COMPANY, a Corporation, and Ernest Jackson, Appellees.
• Court: Indiana Supreme Court

Page 1

135 N.E.2d 1

235 Ind. 489

Evelyn NOVAK, Administratrix of the Estate of Adolph Karpie, Deceased, Appellant, v. CHICAGO & CALUMET DISTRICT TRANSIT COMPANY, a Corporation, and Ernest Jackson, Appellees.

No. 29440.

Supreme Court of Indiana.

June 7, 1956.

Samuel Ruff, East Chicago, George Cohan, Gary, Alton G. Meyer, Valparaiso, for appellant.

Owen W. Crumpacker, Edmund A. Schroer, Theodore M. Gemberling, Crumpacker & Schroer, Hammond, for appellees.

Transferred from Appellate Court under § 4-215, Burns' 1946 Repl. ^*

ACHOR, Judge.

This is an action for wrongful death. The court directed a verdict for appellee at the conclusion of appellant's evidence. This action was assigned as error in appellant's motion for new trial and is relied upon as grounds for reversal in this appeal.

Basically three major questions are presented for our consideration. The first is: Was there some evidence of negligence on the part of appellant sufficient to necessitate taking the case to the jury? The second is: Was decedent guilty of contributory negligence as a matter of law? The third is: Was there evidence of such expenses or of such dependency as contemplated by the wrongful death statute sufficient to take the case to the jury?

The evidence on the issues of negligence and contributory negligence is as follows: Hohman Street runs north and south and Sibley Street runs east and west, intersecting in the heart of downtown Hammond. Decedent was standing at the northeast corner of this intersection prior to crossing to the southeast thereof. At the time appellee's bus was standing in Hohman Street at the north margin of the intersection intending to make a left turn onto Sibley Street and pick up passengers at the curb just east of the intersection. Both the decedent and the bus had stopped for the red light and were waiting for the green. Both started south on the green light, the bus swinging left on an arc. The bus stopped 'at or in the crosswalk.' Decedent also stopped and then continued across the street by going around the bus, to the east of it. The bus then started up again and, in doing so, the right front portion of the bus struck and killed the decedent who, at the time, was at a point near the curb, east of the east line of the crosswalk, but 'directly in front' of a witness who was 'five or six feet from the (southeast) corner.'

Appellee contends that there is no evidence of negligence on the part of appellee because of the fact that decedent was outside the crosswalk when struck and, furthermore, that because of this fact he was guilty of contributory negligence as a matter of law. We do not concur in this contention. From the evidence and the reasonable inferences drawn therefrom the jury might reasonably have believed that the decedent started across the street in the crosswalk since he was 'at the corner' when he started and that he proceeded across the street in the crosswalk since he walked 'south' from the corner. The jury might also have believed that, in violation of the statute, ¹ the bus failed to yield the right-of-way to decedent, a 'pedestrian lawfully within the crosswalk,' but instead obstructed the crosswalk by stopping 'at or on' it and thus making it necessary for decedent to walk out of and slightly to the east thereof in order to go 'around the bus.' Certainly if such inferences can be drawn from the evidence we cannot say that there was no evidence of negligence on the part of appellee or that decedent was guilty of contributory negligence as a matter of law. Therefore, as to the issues of negligence and contributory negligence there was sufficient evidence to take the case to the jury. ²

We next consider whether there was evidence of damages, for which appellant was authorized to maintain this action, sufficient to necessitate taking the case to the jury. Admittedly there was no evidence as to any of the expenses incident to decedent's last sickness and burial or the administration of his estate, for which recovery is authorized by the wrongful death statute, § 2-404, Burns' 1946 Repl. (1955 Supp.) Acts 1949, ch. 42, § 1, p. 126; 1951, ch. 140, § 1, p. 367. Therefore, any judgment for these items would have to be based upon mere speculation.

Appellee also contends that the evidence most favorable to appellant fails to disclose that there were dependent next of kin for whom appellant was authorized to maintain this action under the above statute. In support of its position appellee cites the fact that under the common law there was no legal obligation for an adult child to support its parent. New York Central Railroad Co. v. Johnson, Ind.1955, 127 N.E.2d 603, 606, 607. Neither was there any legal obligation for a parent to support an adult able bodied child. Blanton v. Wheeler & Howes Co., 1916, 91 Conn. 226, 99 A. 494; Gherardi v. Connecticut Co., 1918, 92 Conn. 454, 103 A. 668. Appellee asserts that § 2-404, supra, does not create any different standard of dependency than that which existed under the common law, and that because of the fact that decedent's next of kin were adult able bodied daughters married to employed husbands they were not dependent next of kin, either under the common law or within the express terms of the statute.

However, the rule is now well established that proof of dependency imposed by law is not necessary to recovery under the statute. It is sufficient if such dependency exists in fact. This court was confronted by the same issue in the recent case of New York Central Railroad Co. v. Johnson, supra. In that case this court stated :

'It is not necessary for the decedent to have been under a legal obligation to support the next of kin, * * *.

'Appellant contends that in the 1937 amendment to the Wrongful Death Act of 1933 the addition of the words 'or dependent next of kin,' restricted the right to recovery by a parent for the death of an adult child. Generally an amendment of an act which changes the language of a prior act does indicate a legislative intention that the meaning be changed. However, we are of the opinion that this change in the Wrongful Death Act no more than declared what our prior decisions had been on the right to recovery under such circumstances. * * *'

Also it has been held in an action for wrongful death of an emancipated minor, allegations that decedent assisted his father, mother, and brothers by financial contributions and by purchasing food and clothing for them, which contributions were needed, constituted sufficient allegations of dependency to withstand a demurrer. Public Service Co. v. Tackett, 1943, 113 Ind.App. 307, 47 N.E.2d 851.

Was there any evidence or probative value in the record upon which to submit to the jury the issue of dependency, either in law or in fact? Upon this subject decedent's daughter, Evelyn Novak, testified as follows:

'* * * We lived with him from 1946 until the time of his death. My husband did not have steady employment from 1946 until my father's death (December 31, 1949). He has been on and off from work, and is that way now. He has seen many doctors. In fact, most of his pay check went for medical bills.

'This home we moved into with my father was purchased by him and my husband under the GI Bill of Rights. My father had selected the home. Because of the many medical bills that my husband had as a result of his sickness, my father helped pay for the home, made monthly payments of $25 on the GI loan.

'My father also bought the food, and clothed my children. He helped fix up the home and gave my husband money to pay doctor bills. * * *

'My father made the monthly payments on this home from 1946 until the time of his death; otherwise we would have been out in the street. We were living in a two-room flat prior to that time.

'My father contributed to the support of the household. He paid lights, the gas, just about everything. He did that up to the time of his death. * * *'

This testimony, if believed, was sufficient to sustain a finding of dependency, for it evidenced an actual need for...