The Louisville, New Albany And Chicago Railway Co. v. Goodykoontz

• Decision Date: 18 May 1889
• Docket Number: 13,659
• Parties: The Louisville, New Albany and Chicago Railway Company v. Goodykoontz, Guardian
• Court: Indiana Supreme Court

21 N.E. 472

119 Ind. 111

The Louisville, New Albany and Chicago Railway Company v. Goodykoontz, Guardian

No. 13,659

Supreme Court of Indiana

May 18, 1889

From the Marion Superior Court.

The judgment is reversed, with costs.

G. W Easley, T. L. Sullivan, A. Q. Jones, G. W. Friedley and G. R Eldridge, for appellant.

L Ritter and E. F. Ritter, for appellee.

OPINION

Mitchell, J.

Goodykoontz, as guardian, complains of the appellant railroad company, and charges that the death of his ward, George Lowery, a minor under the age of twenty-one years, was instantaneously caused by the negligence and wrongful conduct of the company. The only averment upon the subject of damages is, that the ward left surviving him "a mother and sister, and next of kin, competent to share in the distribution of the personal estate of said deceased, to whom damages enure," and that by reason of the injury and death the ward's estate has been damaged in the sum of ten thousand dollars.

There was a special verdict, and a judgment for $ 2,500.

It is conceded that the action was brought under section 266, R. S. 1881, which reads as follows: "A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall enure to the benefit of his ward."

It was a settled rule of the common law that no one could maintain a civil action for damages on account of the death of a human being. All claims for injuries to the person were extinguished by the death of the person injured. Actio personalis moritur cum persona. If a child was wrongfully injured, the father, or person lawfully entitled to the child's services, might recover for the loss of services during the period of disability up to the time of death, if death resulted. Incidental damages for nursing, surgical and medical attendance, including appropriate funeral expenses in case of death, were also recoverable by a parent.

The statute above set out has added to the common law remedy of a parent the right to recover all the probable pecuniary loss resulting from the death of a child. The right of action is primarily in the father, but contingently in the mother; and, whether there be a guardian or not, the father, or, under certain contingencies, the mother, may maintain an action under the above section. In estimating the damages, the value of the child's services from the date of the injury until he would have attained his majority, including the cost of nursing, medical and surgical attendance occasioned by the injury, together with necessary funeral expenses if death resulted, are to be considered. Pennsylvania Co. v. Lilly, 73 Ind. 252; Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793; Rains v. St. Louis, etc., R. W. Co., 71 Mo. 164; McGovern v. New York, etc., R. R. Co., 67 N.Y. 417; 2 Thomp. Neg. 1292; 2 Wait Ac. and Def. 477; Shearman and Redf. Neg. (3d ed.), sec. 608.

The foregoing are the elements which enter into and presumably comprise the sum of the pecuniary loss sustained by a parent in case of the injury or death of his child, and whether the child was under guardianship or not, the right of action to recover this pecuniary loss is in the parent to whom the child owed service, and from whom he was entitled to receive support. While either the father or mother is alive, unless they have relinquished their right, respectively, to the services of the child by emancipation or otherwise, and have abdicated their duty to furnish him support, no one else is entitled to maintain an action for the loss of his services during minority, because the injury is to the person entitled to the child's services, and not to the minor's estate. Walters v. Chicago, etc., R. R. Co., 36 Iowa 458; Cooley Torts, p. 314 et seq.

If a minor under guardianship sustains an injury to his person from the wrongful conduct of another, his guardian may maintain an action and recover for the benefit of the ward precisely as the latter might have recovered through the intervention of a prochein ami, in case he had not been under guardianship. This is so whether the ward's father or mother be living or not. The pain and suffering endured, and the permanent injury resulting from the wounding or maiming...