Pennsylvania R. Co. v. Patesel

• Decision Date: 13 January 1948
• Docket Number: 17676.
• Parties: PENNSYLVANIA R. CO. v. PATESEL.
• Court: Indiana Appellate Court

76 N.E.2d 595

118 Ind.App. 233

PENNSYLVANIA R. CO. v. PATESEL.

No. 17676.

Appellate Court of Indiana, in Banc.

January 13, 1948

Appeal from Jasper Circuit Court; Moses Leopold, Judge.

Harker & Irwin, of Frankfort, and Cope J Hanley, of Rensselaer, for appellant.

Landis and Landis, of Logansport, for appellee.

HAMILTON Judge.

This is an appeal from a judgment rendered in favor of appellee in an action to recover damages for the alleged wrongful death of appellee's decedent, whose death was due to a collision between the automobile in which she was riding and one of appellant's passenger trains at the Wilkinson Street crossing with appellant's railroad tracks in the city of Logansport, Cass County, Indiana, at 12:10 a.m. on January 15, 1944.

The action was brought by appellee as administrator of the estate of his 16 year old daughter, Joan Patesel. The complaint alleged that said daughter had been emancipated by her father and left surviving her as her dependent next of kin, her father, Richard Patesel; her mother, Elnora Patesel; her brother, Richard Patesel; and her sisters, Jean and Margaret Patesel; that said brother and sisters were minors and were living at the home of their parents and said decedent at the time of her death.

The decisive question presented by this appeal is whether or not the action should have been brought by the father and not in the name of the administrator. Appellant most earnestly insists that the evidence is insufficient to establish the fact that Joan Patesel was and had been fully emancipated by her father.

Appellant concedes that emancipation need not be express but may be implied from the conduct of the father, provided there is sufficient evidence from which such implication may arise. Public Service Company v. Tackett, 1943, 113 Ind.App. 307, 311, 312, 47 N.E.2d 851; Duzan v. Myers, 1902, 30 Ind.App. 227, 233 234, 65 N.E. 1046, 96 Am.St.Rep. 341. It is appellant's contention that there may be a partial and limited emancipation of a minor child by the father resulting only from a release from service which will give the minor child the right to sue for his own services, but which would not satisfy the requirements for complete emancipation necessary to authorize an administrator to bring an action for wrongful death, which requires that the minor be freed for the period of all its minority from care, custody, control, and service and that the evidence in the instant case falls within such limited classification. Duzan v. Myers, supra; Wabash R. Co. v. McDoniels, 1915, 183 Ind. 104, 109, 110, 107 N.E. 291; Public Service Company v. Tackett, supra.

The question of emancipation is a question of fact in each case to be determined by the jury as the trier of the facts. Surface v. Dorrell, 1944, 115 Ind.App. 244, 251, 57 N.E.2d 66; Haugh, Ketcham & Co. Iron-Works v. Duncan, 1891, 2 Ind.App. 264, 272, 28 N.E. 334.

An examination of the record discloses that there was ample evidence to establish the following facts; Joan Patesel was 16 years of age at the time of her death; she lived at home with her father and mother, brother and sisters all her life; she started working when she was 12 years old and with the money she earned she bought clothes, if she needed them; she quit school on her won decision for the purpose of securing a regular job; she secured her own employment and went to the truant officer to get her working permit; and she also procured a social security card. She collected her own wages and kept it as her own; she used and spent her earnings to buy her own necessities, clothing for her brother and sisters and food for the family, and she made her own decisions as to what to buy and when to do so; she made clothes for herself and her sisters, cleaned her own room, washed her own things, and got breakfast for herself before going to work in the morning; she helped with the work in the home and also gave some cash out of her earnings to her father. Her parents did not in fact exercise any authority or control over her personal behavior, but her father consulted with and advised her about her problems and would have helped her in trouble. At the time of her death she was employed and earning $26 per week; her father was unemployed and her mother was working part time.

It is our opinion...