Stewart v. Marson Const. Corp., 30196

• Decision Date: 25 June 1963
• Docket Number: No. 30196,30196
• Citation: 244 Ind. 134,191 N.E.2d 320
• Parties: Howard STEWART, Appellant, v. MARSON CONSTRUCTION CORPORATION, and Public Service Company of Indiana, Inc., Appellees.
• Court: Indiana Supreme Court

Page 320

191 N.E.2d 320

244 Ind. 134

Howard STEWART, Appellant, v. MARSON CONSTRUCTION CORPORATION, and Public Service Company

of Indiana, Inc., Appellees.

No. 30196.

Supreme Court of Indiana.

June 25, 1963.

Cecil C. Tague, Sr., Roger H. Smith, Brookville, Livengood & Reinke, Richmond, for appellant.

Harlan, Harlan, Schussler & Keller, Richmond, for appellee.

LANDIS, Justice.

Appellant has taken this appeal from an adverse judgment in an action in which appellant was seeking damages for personal injuries for appellees' alleged negligence growing out of an accident which occurred on November 2, 1956. The suit was filed at the trial court on November 1, 1958.

Appellees have filed motion to dismiss the appeal alleging that on January 12, 1963, the appellant died and that this was a cause of action for personal injuries which does not survive the decedent.

Appellant's counsel have filed memorandum in opposition contending that the action does survive under the Acts of 1959, ch. 309, § 1, p. 786 (Burns' § 2-403, 1962 Supp.), which provides so far as applicable, as follows:

'All causes of action shall survive, and may be brought, notwithstanding the death of the person entitled or liable to such action, by or against the representative of the deceased party, except actions for personal injuries to the deceased party, which shall survive only to the extent provided herein. * * * Provided, however, That when a person receives personal injuries caused by the wrongful act or omission of another and thereafter dies from causes other than said personal injuries so received, the personal representative of the person so injured may maintain an action against the wrongdoer to recover damages resulting from such injuries, if the person so injured might have maintained such action, had he or she lived; but provided further, that the personal representative of said injured person shall be permitted to recover only the reasonable medical, hospital and nursing expense and loss of income of said injured person, resulting from such injury, from the date of the injury to the date of his death.'

Appellant's counsel contends the statute in effect of the time of appellant's death governs the determination of whether or not the cause of action survives rather than the statute in effect at the time the cause of action accrued. (There is no question in this case but that the death occurred from other causes than the personal injuries received in the accident of November 2, 1956.)

The general rule however is to the contrary and a statute will not ordinarily be given a...