Thomas v. Eads

• Decision Date: 05 February 1980
• Docket Number: No. 1-1079,1-1079
• Citation: 400 N.E.2d 778
• Parties: Brian D. THOMAS, Defendant-Appellant, v. Jane EADS, as Administratrix of the Estate of Nathan Charles Titus, Deceased and Jane Eads, as Administratrix of the Estate of Debra Jane Titus, Deceased, Plaintiffs-Appellees. A 288.
• Court: Indiana Appellate Court

Page 778

400 N.E.2d 778

Brian D. THOMAS, Defendant-Appellant, v. Jane EADS, as Administratrix of the Estate of Nathan Charles Titus, Deceased and Jane Eads, as Administratrix of the Estate of Debra Jane Titus Deceased, Plaintiffs-Appellees.

No. 1-1079 A 288.

Court of Appeals of Indiana, First District.

Feb. 5, 1980.

John T. Sharpnack, James F. Rosner, Sharpnack, Bigley, David & Rumple, Columbus, for defendant-appellant.

Richard Lorenz, Hickam & Hickam, Spencer, for plaintiffs-appellees.

NEAL, Judge.

On October 2, 1978, an automobile driven by defendant-appellant Brian D. Thomas collided with an automobile in which Debra Jane Titus and her infant son, Nathan Charles Titus, were passengers. Debra had no husband and Nathan was her only dependent. The collision caused the immediate death of Debra and the death of Nathan one-half hour later. Plaintiff-appellee Jane Eads, as administratrix of the estates of Debra and Nathan, brought suit to recover damages under the Wrongful Death Statute, Ind.Code 34-1-1-2.

Thomas filed a motion for partial summary judgment seeking to limit recovery of damages, if any, by each estate to reasonable medical, hospital, funeral and burial expenses related to the injury and death, plus the reasonable costs of administering the estate including reasonable attorney's fees. The Bartholomew Circuit Court granted partial summary judgment as to the estate of Nathan, and Eads as administratrix of the estate did not appeal. ¹ The court denied partial summary judgment as to the estate of Debra, and Thomas perfected this appeal pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(5), raising one issue for our review:

Whether the trial court erred in denying defendant's motion for partial summary judgment to limit the estate of Debra Jane Titus to recovering as damages, if any, only an amount equal to the reasonable medical, hospital, funeral and burial expenses related to Debra's injury and death and the reasonable cost of administering her estate including reasonable attorney's fees, where Debra was not survived by a spouse and her only dependent, her son, died one-half hour after her death.

The resolution of the issue raised in this appeal depends upon the legislative intent embodied in the following emphasized language in the present Wrongful Death Statute, Ind.Code 34-1-1-2:

"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. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this act, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to the undertaker for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee, 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 necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees." (Emphasis added.)

Eads argues that Debra died leaving a dependent child surviving her because Nathan did not die until one-half hour after Debra's death, and that, as a consequence, recovery by Eads as personal representative of Debra's estate is not subject to the limitation on recovery found in the emphasized final portion of the statute. Thomas argues that, because Nathan died prior to the commencement of the action for the wrongful death of Debra, he did not survive Debra in the sense intended by the legislature, and that, as a consequence, recovery by Eads as personal representative of Debra's estate is subject to the limitation on recovery. Based on prior judicial decisions, we agree with Thomas and reverse the trial court's denial of partial summary judgment as to Debra's estate.

The right to maintain an action for damages for wrongful death did not exist at common law, and such right is purely statutory. White, Admx. v. Allman, (1952) 122 Ind.App. 208, 103 N.E.2d 901. The Wrongful Death Statute, being in derogation of the common law, must be strictly construed. Thornburg v. American Strawboard Co. (1895) 141 Ind. 443, 40 N.E. 1062.

As originally enacted, the Wrongful Death Statute read as follows:

"Where 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 cannot exceed ten thousand dollars and must inure to the exclusive benefit of the widow and the children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

Acts 1881 (Spec.Sess.) ch. 38, § 8, p. 240.

In Dillier, Admx. v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., (1904) 34 Ind.App. 52, 72 N.E. 271, a widow became administratrix of her late husband's estate and instituted an action against the railroad for wrongfully causing his death. She died during the pendency of the suit; Dillier became administratrix, was substituted as plaintiff, and filed an amended complaint alleging the decedent was survived at the time of his death by the widow and three dependent brothers. The jury in answer to interrogatories found that the widow was the decedent's only dependent at the time of his death and returned a general verdict for the plaintiff. The trial court entered judgment for the railroad, notwithstanding the verdict, which judgment was affirmed on appeal.

The Appellate Court of Indiana interpreted the language of the Wrongful Death Statute ² and determined that the persons contemplated by the statute as beneficiaries were persons who were dependent upon the decedent or entitled to anticipate pecuniary benefit from the continuance of his life. The court said, in 34 Ind.App. at 57, 72 N.E. at 273:

"Unless at the commencement of the action, and also at the time of awarding the damages there be living some person or persons of whom it can be said that the law implied damage from the death of plaintiff's decedent, or who, being next of kin to him, may be said to have suffered pecuniary loss through his death, there can be no recovery under the statute." (Emphasis added.)

The court found that upon the death of the widow, there was no person for whose benefit the action could properly be maintained, and held, at 61, 72 N.E. at 274:

"(T)he action . . . is not maintainable for any purpose after the death of all persons for whose exclusive benefit . . . the right of action accrued upon the death of the injured person, whether the death of such beneficiaries be before (the) action (is) brought . . . or during its pendency." (Insertions added.)

In 1933, the legislature amended the Wrongful Death Statute, leaving intact the language that the damages must inure to the exclusive benefit of "the widow and the children, if any, or next of kin," but adding that the distribution of damages would be subject to a new proviso as follows:

"Provided, however (original emphasis), 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, performing medical or surgical services in connection with the last illness or injury of the decedent not exceeding one hundred dollars; to the undertaker for the funeral and burial expenses, not exceeding three hundred dollars, and to the personal representative, as such, for the cost 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; and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent...