Shipley v. Daly

• Court: Indiana Appellate Court
• Citation: Shipley v. Daly, 106 Ind.App. 443, 20 N.E.2d 653 (Ind. App. 1939)
• Decision Date: 02 May 1939
• Docket Number: 16127.
• Parties: SHIPLEY v. DALY.

20 N.E.2d 653

106 Ind.App. 443

SHIPLEY v. DALY.

No. 16127.

Appellate Court of Indiana, in Banc.

May 2, 1939

J M. Johns, of Rockville, and Sam Shipley and Frank Hamilton both of Terre Haute, for appellant.

McFaddin & McFaddin of Rockville, and E. S. Huggins, of Indianapolis, for appellee.

BRIDWELL Judge.

On November 6, 1936, Edward P. Shipley was struck by an automobile operated by appellee, and suffered injuries from which he died. He left surviving him his widow, America Shipley. Appellant instituted this action against appellee to recover damages for the benefit of said widow, as authorized by our statutory law (Burns' Ind.Stat.Anno.1933, § 2-404; Baldwin's Ind.Stat.1934, § 51). Before any trial was had on the complaint filed, the surviving widow, America Shipley died, and thereafter appellant filed a second paragraph of complaint, alleging, among other facts, the death of said widow, and by said second paragraph sought to recover hospital, medical and funeral expenses occasioned by the injury and death of said Edward P. Shipley, together with the costs of administration of the estate.

Appellee filed a plea in abatement which, omitting its formal parts, is as follows:

"Virginia Daly, the undersigned, represents and says that she is the defendant in the above-entitled cause of action; that the only dependent of plaintiff's decedent surviving him was his widow, America Shipley, as disclosed by both paragraphs of the complaint herein filed; that said America Shipley, the widow of plaintiff's decedent, departed this life on April 21st, 1937, before any trial of this cause and before any judgment was rendered in this cause.

"Wherefore, this defendant moves the Court to abate this action with respect to each paragraph separately of the complaint."

In due course appellant filed demurrer to the plea in abatement, and before any ruling thereon dismissed the first paragraph of complaint. Thereafter, the court overruled appellant's demurrer, and he excepted, refused to plead further, and judgment was rendered against him "that this action do in all things abate, and that plaintiff take nothing by his complaint in this action," also, that defendant recover costs. This appeal followed. The error assigned is the overruling of the demurrer to the plea in abatement.

The statute here involved is as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two (2) years. The damages can not exceed ten thousand ($10,000), and, subject only to the provisions of this act hereinafter contained, 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; Provided, however, That if such decedent departs this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, such personal representative may nevertheless maintain such action and the damages, in such event, shall inure to the exclusive benefit of the person or persons furnishing hospitalization or hospital services in connection with the last illness or injury of decedent not exceeding two hundred dollars ($200), performing medical or surgical services in connection with the last illness or injury of the decedent not exceeding one hundred dollars ($100); to the undertaker for the funeral and burial expenses, not exceeding three hundred dollars ($300), and to the personal representative, as such, for the costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee, not exceeding two hundred and fifty dollars ($250); and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the reasonable value of such hospitalization of (or) hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees, not exceeding the total amount of eight hundred and fifty dollars ($850); Provided, however, That this act shall not in any way limit or lessen the liability or right of recovery under the law as it now exists before the passage of this act."

The right of action given by this statute is not a continuation of any action existing in favor of the deceased person prior...