Stewart v. The Terre Haute and Indianapolis Railroad Company

• Decision Date: 16 September 1885
• Docket Number: 12,354
• Citation: Stewart v. The Terre Haute and Indianapolis Railroad Company, 2 N.E. 208, 103 Ind. 44 (Ind. 1885)
• Parties: Stewart, Administrator, v. The Terre Haute and Indianapolis Railroad Company
• Court: Indiana Supreme Court

2 N.E. 208

103 Ind. 44

Stewart, Administrator, v. The Terre Haute and Indianapolis Railroad Company

No. 12,354

Supreme Court of Indiana

September 16, 1885

From the Clay Circuit Court.

The judgment is affirmed, with costs.

E. S Holliday and G. A. Byrd, for appellant.

J. G Williams, G. A. Knight and C. H. Knight, for appellee.

OPINION

Howk, J.

In this case, the appellant, William Stewart, administrator of the estate of William O. Stewart, deceased, sued the appellee the Terre Haute and Indianapolis Railroad Company, in a complaint of three paragraphs.The object of the action, as stated in each of such paragraphs, was to recover damages for the death of appellant's intestate, caused, as alleged, by the wrongful act or omission of the appellee, without fault or negligence on the part of the decedent or of the appellant.The cause was put at issue and tried by a jury, and a verdict was returned for the appellant, the plaintiff below.Thereupon, the appellee moved the court to arrest judgment on the verdict, which motion was sustained by the court, and judgment was arrested accordingly.

The sustaining of appellee's motion in arrest of judgment is the only error assigned here by the appellant.This motion was in writing, and stated the following grounds for the arrest of judgment, namely:

"1.Because the complaint herein does not state facts sufficient to constitute a cause of action.

"2.Because the complaint does not show facts sufficient to entitle the plaintiff, as administrator, to maintain this action.

"3.Because the complaint does not contain any averments that plaintiff's intestate left surviving him a widow and children, or either of them, or any next of kin.

"4.Because the complaint does not contain any averments that plaintiff's intestate left surviving him a widow or children, or next of kin, nor was it proven on the trial that said intestate left surviving him a widow or children, or next of kin."

Appellant's cause of action for the death of his intestate, as stated in his complaint, was unknown to the common law, and is of statutory origin.Cincinnati, etc., R. R. Co. v. Chester,57 Ind. 297.In section 284, R. S. 1881, it is provided as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission.The action must be commenced within two years.The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

This section is substantially a re-enactment of section 784 of the civil code of 1852(2 R. S. 1876, p. 309), the only material difference between the two sections being that, under the older one, the damages could not exceed $ 5,000.Under the statute, the action is prosecuted by and in the name of the personal representative of the decedent, for the benefit not of the plaintiff as such nor of the decedent's estate but for the exclusive benefit of the widow and children, if any, or the next of kin, of the decedent.If, therefore, the decedent leave neither wife nor child surviving him, and have no next of kin at the time of his death, it is very clear, we think, that his personal representatives could not maintain an action for the recovery of the damages, given by the statute, against the party whose wrongful act or omission caused his death.In Indianapolis, etc., R. R. Co. v. Keeley,23 Ind. 133, in construing the statutory provisions now under consideration, the court said: "As the right to sue is purely a statutory one, and in derogation of the common law, the statute must be strictly construed, and the case brought clearly within its provisions, to enable the plaintiff to recover.The right to sue is given to the personal representative of the deceased, and the action is prosecuted in his name; but the damages 'must inure to the exclusive benefit of the widow and children, or next of kin,' and therefore the action is, in effect, prosecuted for their benefit.If there were no wife, children, or next of kin, surviving the deceased,...