Pennsylvania v. Coyer

• Decision Date: 13 December 1904
• Docket Number: 20,411
• Citation: 72 N.E. 875,163 Ind. 631
• Parties: Pennsylvania Company v. Coyer, Administratrix
• Court: Indiana Supreme Court

72 N.E. 875

163 Ind. 631

Pennsylvania Company v. Coyer, Administratrix

No. 20,411

Supreme Court of Indiana

December 13, 1904

From Porter Circuit Court; W. C. McMahan, Judge.

Action by Delphine Coyer as administratrix of the estate of Charles Coyer, deceased, against the Pennsylvania Company for damages for the death of her decedent. From a judgment for plaintiff rendered upon a verdict for $ 1,650, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901 (Acts 1901, p. 590, § 1).

Reversed.

Allen Zollars and F. E. Zollars, for appellant.

T. H Heard, J. O. Bowers and Frank May, for appellee.

Dowling C. J. Gillett, J., did not participate in this decision.

OPINION

Dowling, C. J.

Action by the appellee, as administratrix of the estate of Charles Coyer, deceased, against the appellant, the Pennsylvania Company, for damages for a personal injury resulting in the death of Coyer. Demurrer to each paragraph of complaint overruled. Answer in denial. Trial by a jury. Verdict for appellee, with answers to interrogatories. Motion for judgment on special answers, and for a new trial overruled. Judgment on verdict. All questions discussed in brief of counsel for appellant are properly presented by the assignment of errors.

The complaint charged that the death of Charles Coyer appellee's decedent, was caused by the wrongful act and omission of the appellant. Each of its three paragraphs alleged, among other things, that Coyer, an employe of a firm engaged in the construction of a second track for appellant, "after working hours, * * * as had been his custom, and with the consent of defendant company, did go upon and board defendant's work train, * * * and with the knowledge and consent of the defendant and its employes in charge of said train did climb in and upon the caboose of said work train * * * for the purpose of being carried to his home in the city of Plymouth; * * * that the said Charles Coyer was twenty years old, strong, active, able-bodied, and intelligent, and capable of earning $ 90 per month, and did so long before and at the time of his death; that * * * more than a year prior to his death he was fully emancipated and given his time by his mother (a widow), and allowed to do business for himself; that he used and did as he pleased with his wages, and collected and received the value of his services; * * * that the said Charles Coyer * * * died intestate, leaving as his only heirs at law and next of kin his mother Delphine Coyer, and his brothers, Peter Coyer, William Coyer, and George Coyer, and his sisters, Emma Carter, Neoma Coyer, and Ida Coyer."

The first objection to the complaint by counsel for appellant is that it does not show that the next of kin suffered any injury for which the law will award damages. The action is founded upon § 285 Burns 1901, which authorizes the personal representative of one whose death is caused by the wrongful act or omission of another to maintain an action therefor in certain cases, and which provides that the damages 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. It has never been held in this State that the complaint must show the fact that the widow, widower, children, or next of kin of the deceased had a pecuniary interest in his life, or the nature or extent of that interest.

This court said in the case of the Indianapolis, etc., R. Co. v. Keeley (1864), 23 Ind. 133, 136, 137: "In New York, under a statute conferring the same right of action on the personal representatives of the deceased person, and 'the sum recovered to be for the exclusive benefit of the widow and next of kin,' it has been held that the complaint should show that 'there are persons entitled by law to claim the indemnity,' and that their names should be stated. Safford v. Drew [1854], 3 Duer (N.Y.) 627. The New York statute may furnish one reason why the persons entitled to the damages recovered should be named in the complaint, that does not exist under our statute, in this: the statute of New York provides that 'the jury may give such damages as they shall deem a fair and just compensation, not exceeding $ 5,000, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of the deceased person.' A different rule seems to prevail under our statute. See Long v. Morrison [1860], 14 Ind. 595. In view, however, of the whole question, we think the better rule of practice requires that the names of the persons and their relation to the deceased should be stated in the complaint. It imposes no hardship on the plaintiff, and only requires to be stated in the complaint the facts that must be proved on the trial to justify a recovery."

Again, in the Jeffersonville, etc., R. Co. v. Hendricks (1872), 41 Ind. 48, 77, this court said: "We are of the opinion that it will be sufficient to allege in the complaint, and prove on the trial, that there are persons who are entitled, under the statute, to the damages. We hold that it is not necessary to give the names of such persons in the complaint, but such allegation would not vitiate."

It was averred in the complaint under review that the deceased was unmarried, that he died intestate, and that he left surviving him, as his heirs at law and next of kin, his mother and brothers and sisters, naming each of them. This was a sufficient allegation of interest in the life of the deceased in the persons so named and described, and it authorized proof of such pecuniary loss as the persons so related sustained by his death. This view seems to be entirely in harmony with the authorities. Stewart v. Terre Haute, etc., R. Co. (1885), 103 Ind. 44, 2 N.E. 208; Louisville, etc., R. Co. v. Goodykoontz (1889), 119 Ind. 111, 21 N.E. 472, 12 Am. St. 371; Commercial Club v. Hilliker (1898), 20 Ind.App. 239, 242, 243, 50 N.E. 578; Salem-Bedford Stone Co. v. Hobbs (1894), 11 Ind.App. 27, 38 N.E. 538; State, ex rel., v. Walford (1894), 11 Ind.App. 392, 39 N.E. 162; Conant v. Griffin (1868), 48 Ill. 410; McGlone v. New Jersey R., etc., Co. (1875), 37 N.J.L. 304; Keller v. New York Cent. R. Co. (1861), 24 How. Pr. 172; 5 Ency. Pl. and Pr., 868-870; Cincinnati, etc., R. Co. v. Carper (1887), 112 Ind. 26, 13 N.E. 122, 2 Am. St. 144 and notes; Alabama, etc., R. Co. v. Yarbrough (1887), 83 Ala. 238, 3 So. 447, 3 Am. St. 715.

It is next contended that the complaint does not show that Coyer was a passenger, nor that he was otherwise rightfully upon the train, so as to make appellant liable upon the ground of negligence. It does appear that he was not an employe of the appellant, and the averment is that he was in the habit of riding upon the train, and was in the caboose with the knowledge and consent of the defendant company for the purpose of being carried to his home. If he was on the work train with the knowledge and consent of the appellant for this purpose, he was neither a trespasser, a licensee, nor a servant of the company. Although he paid no fare, he was a person carried gratuitously, and the appellant was bound to exercise at least ordinary care for his safety. Gillenwater v. Madison, etc., R. Co. (1854), 5 Ind. 339, 61 Am. Dec. 101; Louisville, etc., R. Co. v. Faylor (1890), 126 Ind. 126, 130, 25 N.E. 869; Cleveland, etc., R. Co. v. Ketcham (1893), 133 Ind. 346, 33 N.E. 116, 36 Am. St. 550, 19 L.R.A. 339; Ohio, etc., R. Co. v. Selby (1874), 47 Ind. 471, 17 Am. Rep. 719; Ohio, etc., R. Co. v. Nickless (1880), 71 Ind. 271; Rosenbaum v. St. Paul, etc., R. Co. (1888), 38 Minn. 173, 36 N.W. 447, 8 Am. St. 653, 34 Am. & Eng. R. Cas. 274; St. Joseph, etc., R. Co. v. Wheeler (1886), 35 Kan. 185, 10 P. 461, 26 Am. & Eng. R. Cas. 173; Chicago, etc., R. Co. v. Frazer (1895), 55 Kan. 582, 40 P. 923; Keating v. Michigan Cent. R. Co. (1893), 97 Mich. 154, 56 N.W. 346, 37 Am. St. 328; Lawrenceburgh, etc., R. Co. v. Montgomery (1856), 7 Ind. 474; Ohio, etc., R. Co. v. Dickerson (1877), 59 Ind. 317; Ohio, etc., R. Co. v. Muhling (1861), 30 Ill. 9, 81 Am. Dec. 336; Hazard v. Chicago, etc., R. Co. (1865), 1 Biss. (U.S.) 503, 11 F. Cas. 921; Fitzpatrick v. New Albany, etc., R. Co. (1856), 7 Ind. 436; Lake Shore, etc., R. Co. v. Brown (1887), 123 Ill. 162, 14 N.E. 197, 5 Am. St. 510; McGee v. Missouri Pac. R. Co. (1887), 92 Mo. 208, 4 S.W. 739, 1 Am. St. 706. The demurrer to the complaint was properly overruled.

While many of the special answers of the jury were apparently antagonistic to the general verdict, they were not irreconcilable with it. Evidence might have been introduced under the issues which would have rendered them consistent with the conclusion that the appellee was entitled to recover upon the pleadings. Princeton Coal, etc., Co. v. Roll (1904), 162 Ind. 115, 66 N.E. 169; Albany Land Co. v. Rickel (1904), 162 Ind. 222, 228, 70 N.E. 158.

Did the court err in overruling appellant's motion for a new trial? One of the reasons assigned for the motion was that the verdict was not sustained by sufficient evidence. It will not be necessary to set out or consider the evidence in detail, as we think there was a failure of proof upon a vital point, which must cause a reversal of the judgment. The complaint, as we have seen, alleged that Coyer, with the consent of the appellant, went upon the work train with the permission of appellant's servants in charge of said train, the custom being to convey Coyer and other employes of P. T. Clifford & Sons, the contractors, to and from their work.

It was proved without contradiction that a rule of the appellant expressly prohibited the employes of P. T Clifford & Sons from riding on the work train without the special permission of the...