Pennsylvania Co. v. Davis

• Decision Date: 08 December 1891
• Citation: 4 Ind.App. 51,29 N.E. 425
• Parties: PENNSYLVANIA CO. v. DAVIS.
• Court: Indiana Appellate Court

4 Ind.App. 51

29 N.E. 425

PENNSYLVANIA CO.

v.DAVIS.¹

Appellate Court of Indiana.

Dec. 8, 1891.

Appeal from circuit court, Bartholomew county; N. R. KEYES, Judge.

Action by Joel S. Davis, executor of William Hunter, deceased, against the Pennsylvania Company to recover damages for the wrongful death of Hunter's infant daughter. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

S. Stansifer, for appellant. Marshall Hacker and Chas. F. Remy, for appellee.

ROBINSON, C. J.

This action was commenced by William Hunter, on a complaint charging that the death of his infant daughter, aged 20 months, was caused by the negligence of the appellant. While the action was pending, and before the issues were formed, William Hunter died, and on the suggestion of his death and motion to continue the action in the name of Joel S. Davis, executor of Hunter's will, appellant objected, and moved that the action be dismissed, because by Hunter's death the action abated. The objection was overruled, and the motion of the appellee sustained, and the action was ordered continued in the name of the executor, to which rulings exceptions were taken. Thereupon the appellee filed a complaint in seven paragraphs. The appellant filed motions to strike out certain parts of each paragraph in the complaint, and to require the appellee to make each paragraph in the complaint more certain and specific, which motions were overruled, and exceptions taken. The appellant demurred separately to each paragraph in the complaint, which was overruled, and exceptions taken. The appellant answered by general denial. The cause was tried by a jury, resulting in a verdict of $1,000 for the appellee. The appellant filed a motion for a new trial, which was overruled, and exception taken. Judgment was rendered on the verdict. The evidence is in the record. The following constitute the assignment of errors: “(1) The court erred in continuing the action in the name of the appellee, the executor, and in overruling appellant's motion to abate and dismiss the action because of the death of said William Hunter. (2) The court erred in overruling appellant's motion to strike out parts of each paragraph of the complaint. (3) The court erred in overruling appellant's motion to make the averments of each paragraph of the complaint more certain and specific. (4) The court erred in overruling appellant's demurrers to each paragraph in the complaint. (5) The court erred in overruling appellant's motion for a new trial.”

The first contested question under the assignment of errors is the right of the appellee to maintain this action. The appellant insists that the cause of action abated by the death of the original plaintiff; that by the common law the death of either plaintiff or defendant abated and extinguished all actions and causes of action sounding in tort, and no right of action existed for death wrongfully caused. There is no doubt that statutory actions for torts abate according to the rules of the common law, the same as common-law actions, unless expressly saved by some clause in the statute creating them. Little v. Conant, 2 Pick. 526;Jones v. Vanzandt, 4 McLean, 604;Hooper v. Gorham, 45 Me. 209. Therefore, if the position of the appellant upon the common law is sound, is it a question in this case of what the common law is upon the subject; but is not the question one of construction under the statute of this state whether this action survived, or whether, under the statute, it abated by reason of the death of William Hunter, the father of the child? If, under the statute, the action, which was created by statute, survives, then the action is purely statutory, and is not affected by the common law. The provisions of the statute governing this question, and which must determine it, will be found in the following sections: “Sec. 266. 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,” etc. “Sec. 282. A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and malicious prosecution. Sec. 283. All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promise to marry. Sec. 284. 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.” There is no doubt that under section 266, supra, an action is given to the father for an injury resulting in the death of his infant child. The right of action being thus established in the father, and being entirely statutory, the action, in case of the death of the father, abates, unless expressly saved by the statutes quoted creating the action. By section 283, supra, it is provided that all other causes of action survive and may be brought by or against the representatives of the deceased party, except actions for promise to marry. By the provision of section 282, supra, the exception is made as to cases in which an action is given for an injury causing the death of any person. The conclusion seems clear and inevitable that such actions do not abate, and that the court properly ordered the action continued in the name of the executor. Counsel for appellant refer us, in support of the argument that the action abated by the death of the father of the child, to Boor v Lowrey, 103 Ind. 468, 3 N. E. Rep. 151. That case was for an injury to the person that did not result in death, and came directly within the meaning of the first clause of section 282, supra, that “a cause of action arising out of injury to the person dies with the person of either party.” The court in that case say: “It is plainly enacted in the statute (section 282) that ‘a cause of action arising out of injury to the person dies with the person of either party, except in cases in which an action is given for causing the death of any person,”’ etc. Counsel for appellant also assume in argument that, while the statute does not in terms provide that the action abated by the death of the father of the child, but the statute not providing against abatement by death, the common-law rule that his death did abate the action should govern as to this proposition. It is only necessary to say that the statute clearly provides against abatement by death in cases in which an action is given for causing the death of any person. The action was created by statute, and by express provision of statute is saved from abatement. That the action survived under express provision of statute seems too clear to admit of controversy. Telegraph Co. v. Scircle, 103 Ind. 227, 2 N. E. Rep. 604; Boor v. Lowrey, supra; City of Seymour v. Cummins, 119 Ind. 148, 21 N. E. Rep. 549; Woodward v. Railway Co., 23 Wis. 400; Cregin v. Railroad, 75 N. Y. 192, 83 N. Y. 595. The court did not err in holding that the action did not abate by the death of the father of the child, and in ordering the action continued in the name of the executor.

Under the second and third assignment of error it is alleged that the court erred in overruling appellant's motion to strike out parts of each paragraph of the complaint, and to require the appellee to make the averments in each paragraph more specific. There was no error in the rulings on these motions. It is conceded by counsel for appellant that the court correctly ruled on the motion to strike out, and no valid reason is assigned why the motion to make the complaint more specific should have been sustained.

The fourth assignment of error calls in question the complaint. As has been seen, the complaint contained seven paragraphs, and the following, omitting the caption and the formal averments as to the capacity in which the action is prosecuted, the date on which the injury was done, the averments of appellant's corporate existence, organization, and line of its said railroad, etc., contains substantially the following allegations: “That about five o'clock in the afternoon of said day the infant daughter of said plaintiff's testator, named Elizabeth, who lived with him, and was of the age of twenty months, escaped from the residence of plaintiff's testator, and was on the track of said railroad about six miles south-east of the city of Columbus, in said county, at a private crossing of said railroad known as ‘Hunter's Crossing,’ on what is known as the ‘Madison Branch’ of said railroad, in Bartholomew county. That the plaintiff's testator at said time resided with his family, in a house about two hundred yards south-west of said Hunter's Crossing of said railroad. That said house of plaintiff's testator was surrounded by a fence, part rail and part plank; said fence being of the height of, to-wit, six feet; the east line of said fence, in front of said house, being constructed of sawed planks, nailed to posts set in the ground, in which said plank fence was a gate, for ingress and egress, of the same height of said fence, said gate being provided with a good and sufficient lock or catch, which fastened and held said gate to its place when closed. That said Elizabeth could not climb over said plank or rail fence or gate, and could not get through or under the same at any place, except when said gate was opened, and she could not open said gate when shut. That said gate was kept shut at all times, except when plaintiff's testator and the family passed through it, at which times said gate was closed as soon as the person opening the same had passed through. That said Elizabeth was not permitted by plaintiff's testator, or any member of his family, or any one...