Public Service Co. of Indiana v. Tackett

• Court: Indiana Appellate Court
• Citation: Public Service Co. of Indiana v. Tackett, 113 Ind. App. 307, 47 N.E. 2d 851 (Ind. App. 1943)
• Decision Date: 03 April 1943
• Docket Number: 16900.
• Parties: PUBLIC SERVICE CO. OF INDIANA v. TACKETT.

47 N.E.2d 851

113 Ind.App. 307

PUBLIC SERVICE CO. OF INDIANA v. TACKETT.

No. 16900.

Appellate Court of Indiana, in Banc.

April 3, 1943

Evans & Hebel, of Indianapolis, Willis Hickam, of Spencer, and Owen S. Boling, of Indianapolis, for appellant.

Gilbert W. Butler and John E. Hurt, both of Martinsville, and Claude Hoskins, of Spencer, for appellee.

FLANAGAN Presiding Judge.

Appellee Thomas Tackett, administrator of the estate of Robert Tackett, deceased, brought this action against the appellant to recover damages on account of the wrongful death of his decedent alleged to have been caused by the negligence of the appellant. Issues of law were joined on the amended complaint in a single paragraph by a motion to make more specific and by a demurrer for want of facts, each of which was overruled. Issues of fact were joined on the complaint by answer in general denial. Trial by jury resulted in a verdict and judgment for appellee in the sum of $2,000.

Errors relied upon for reversal are: (1) overruling appellant's motion to make the amended complaint more specific; (2) overruling appellant's demurrer to the amended complaint and (3) overruling appellant's motion for a new trial.

The motion for a new trial challenges the sufficiency of the evidence, the amount of the verdict, and the correctness of certain instructions given.

Rulings on motions to make more specific are largely in the discretion of the trial court and this court will not consider such ruling cause for reversal unless the trial court is shown to have abused its discretion and that the complaining party has been harmed. Meyer v. Garvin, 1941, Ind. App., 37 N.E.2d 291. Appellant has not pointed out wherein the trial court abused its discretion or wherein it has been harmed. There was therefore no reversible error in the ruling on the motion to make more specific.

The theory of the complaint is that the decedent died by electrocution by coming in contact with a wire used by appellant in transmitting electrical current; that his contact with the wire was the result of the negligence of the appellant; that the decedent was an emancipated minor twenty years of age; and that his mother, father and four brothers were his surviving dependent next of kin.

The demurrer charges that the allegations of the complaint are insufficient regarding, (1) emancipation; (2) dependent next of kin; and (3) negligence.

The allegations of the amended complaint concerning emancipation follow: "That said decedent was twenty years of age * * *; That at the time of his death and for more than 3 years immediately prior thereto, he had worked for divers persons; and during all said time and up to the time of his death collected all his wages, bought his own clothing and in every way solely conducted his own affairs; collecting and receiving his wages, making his own contracts of employment and paying for all his necessaries * * *."

Appellant's motion to make more specific had been directed to the allegations concerning emancipation and had sought to have the facts stated which were relied upon to support each alleged conclusion therein. This motion was overruled. The sufficiency of the allegations to withstand a demurrer must be determined from the facts stated without support from any such alleged conclusions which were not drawn from facts fully pleaded and set out. Neal v. Baker, 1926, 198 Ind. 393, 153 N.E. 768; Enterprise, etc., Co. v. Craig, 1924, 195 Ind. 302, 144 N.E. 542, 145 N.E. 309.

Emancipation, as applied to the relinquishment of the claim to the services of a minor child, means to free a child for all the period of its minority from care, custody, control and service. Wabash R. Co. v. McDoniels, 1915, 183 Ind. 104, 107 N.E. 291. It need not be evidenced by formal writing but may be implied by the conduct of the father. Duzan v. Myers, 1903, 30 Ind.App. 227, 65 N.E. 1046, 96 Am.St.Rep. 341.

The amended complaint alleged the conclusion that the decedent was emancipated based upon the facts that he was 20 years old at the time of his death, that for more than three years he had worked for divers persons, made his own contracts of employment, collected all his own wages, bought his own clothes and in every way conducted his own affairs. We think this is sufficient allegation of emancipation to withstand a demurrer.

The allegations of the amended complaint concerning dependent next of kin follow: "That said decedent left surviving him as his next of kin his father, Thomas Tackett, his mother, Ella Tackett, his brothers, Albert Tackett, George Tackett, John Tackett and Ralph Tackett. That said decedent was twenty years of age and unmarried and during all his lifetime lived with his said father, mother and brothers and each of them. * * *" That said decedent "assisted his said father, mother and brothers aforesaid, in that he, at various and frequent intervals made voluntary and frequent financial contributions to them and assisted in the payment of the up-keep of the home by making frequent purchases of food and clothing for his said father, mother and brothers * * *."

Appellant contends, (1) that "next of kin" is determined by the civil law and in this case are the father and mother, and not the brothers; (2) if the decedent was emancipated the father has waived all pecuniary interest in the continued existence of the deceased and damages cannot be recovered which would inure to his benefit; and (3) the complaint alleges only pecuniary loss and not dependency.

As to appellant's first contention we think the legislature, by providing that the damages should inure to the benefit of the "dependent next of kin, to be distributed in the same manner as the personal property of the deceased", (§ 2-404, Burns' 1933, § 51, Baldwin's 1934) clearly intended that in order to determine who are next of kin reference should be had to the statute of descent. The statute provides that if an intestate shall die without lawful issue or their descendants alive, one-half of the estate shall go to the father and mother and one-half to the brothers and sisters. § 6-2303, Burns' 1933, § 3292, Baldwin's 1934.

We cannot agree with appellant's contention that when a father emancipates his son, he thereby waives any right to damages under the wrongful death statute. The right of action given by that statute (§ 2-404, Burns' 1933, supra) is a new one which exists only by virtue of the statute creating it and accrues on the death of the decedent. Shipley, Adm'r v. Daly, 1939, 106 Ind.App. 443, 20 N.E.2d 653.

As to appellant's contention numbered 3 above, the amended complaint alleges that the decedent assisted his father, mother and brothers by financial contributions and by purchasing food and clothing for them. We think this is sufficient allegation of dependency to withstand a demurrer.

The allegations of the amended complaint concerning negligence follow:

It is alleged that appellant was engaged in the business of manufacturing, selling and transporting electrical energy and in connection with such business maintained electric lines consisting of wires on poles with cross-arms and insulators; that where the involved accident occurred the lines pass over an unobstructed pass-way used by the public, through a tree whose branches were permitted to grow so as to touch and press against the wires; that as a result the two wires were pressed together by the branches of the tree, causing one of the wires to break and fall to the ground into the grass adjacent to the pass-way, where the decedent came in contact with it. Then it is alleged that appellant was negligent in the following respects:

"1. In permitting branches of a tree to grow in and around said wires and in such a manner that the force of the wind blowing against said branches would cause said wires to come together and thus burn and fall to the ground at a place where persons, including plaintiff's decedent, could come in contact therewith.

"2. In failing to maintain sufficient tension upon the wires so as to prevent the same from coming together, as heretofore alleged.

"3. In failing to take proper steps to disconnect the current after said wire was broken for more than twenty-two (22) hours when said defendant knew, or by the exercise of reasonable care could have known, the same was broken and thus prevent the escape of electrical current, and at a place where plaintiff's decedent came in contact

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