Thompson v. Town of Fort Branch

Decision Date20 November 1931
Docket Number26,131
Citation178 N.E. 440,204 Ind. 152
PartiesThompson v. Town of Fort Branch
CourtIndiana Supreme Court

1. NEW TRIAL---Specification of Grounds for---Insufficiency of Evidence and Contrary to Law---Presents no Question as to Amount of Damages.---A specification in a motion for a new trial that the verdict or finding is not sustained by sufficient evidence or is contrary to law presents no question as to the amount of damages. p. 156.

2. NEW TRIAL---For Inadequacy of Damages---Prohibited for "Injury to the Person" (611 Burns 1926)---Action for Death of Minor not Within Statute.---A father's action for the death of a minor son is not one for "injury to the person" within the meaning of 611 Burns 1926 prohibiting a new trial on account of inadequacy of damages awarded. (Gann v. Worman, 69 Ind 458, overruled). p. 156.

3. DEATH---Of Minor Child-Parent's Right of Action---Conferred by Statute.---It is now well settled in this state that the statute (274 Burns 1926) gives a father in his own right, a cause of action for loss of services or other pecuniary injury occasioned either by personal injuries to or the death of the child. p. 157.

4. PARENT AND CHILD---Wrongful Death of Child---Parent's Right of Action---Nature of Action---Damages.---A parent's right of action for the wrongful death of a child is not for personal injury to the child, but is limited to the parent's pecuniary loss resulting therefrom, such as loss of services, expenses, etc. p. 157.

5. INFANTS---Wrongful Injury To---Right of Action---Of Parent---Of Child.---The wrongful injury of a minor child gives rise to two causes of action: one by the child for injury to its person; and one by the parent for loss of the child's services, etc. p. 157.

6. NEW TRIAL---Grounds For---Parent's Action for Loss of Child's Services---Held to be Action for "Injury to Property."---An action by a parent to recover the value of lost services of a minor child, resulting either from the death of or personal injury to the child, is an action for an "injury to property" within the meaning of subdivision 5 of 610 Burns 1926 providing as one of the grounds for a new trial that there was "error in the assessment of the amount of recovery... where the action is upon a contract or for the injury [to] or detention of property." p. 160.

7. NEW TRIAL---Grounds For---Father's Action for Death of Minor Child---Error in Assessment of Amount of Recovery---Injury to Property.---In an action by a father to recover damages for the wrongful death of his minor son, a motion for a new trial specifying as one of the grounds thereof "error in the assessment of the amount of recovery, in this, to wit, the amount of damages assessed by the verdict of the jury is too small" (cl. 5, 610 Burns 1926) presents the question of inadequacy of damages. p. 160.

8. DEATH---Of Minor Child---Father's Action for Loss of Services and Funeral Expenses---Verdict Awarding $1 Held Erroneous.---A verdict awarding a father $1 only for damages for the wrongful death of his 17-year-old son and funeral expenses, when the undisputed evidence showed that he had paid more than $400 for funeral expenses constituted error in the assessment of the amount of recovery, and inadequacy of damages. p. 160.

9. NEW TRIAL---Error in Assessment of Amount of Recovery---When Established.---Error in assessment of amount of recovery (subd. 5, 610 Burns 1926) is established if it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. p. 163.

10. DEATH---Of Minor Child---Measure of Damages---In Action by Father.---It is well settled in this state that the measure of damages for lost services of a minor child in case of instant death is the value of the child's services from the time of his death until he would have attained his majority, taken in connection with his prospects in life less the cost of his support and maintenance during that period, including board, clothing, schooling and medical attention. p. 164.

11. DEATH---Of Minor Child---Measure of Damages---In Action by Father---Deduction of Cost of Maintenance from Funeral Expenses not Permitted.---No rule of law has been recognized in this state which would permit a defendant in a father's action for loss of his child's services and for funeral expenses resulting from his death to reduce the amount of recovery for funeral expenses by deducting therefrom the cost of maintenance, and an instruction to that effect would be erroneous. p. 164.

12. NEGLIGENCE---Contributory Negligence---In Action by Parent for Wrongful Death of Child.---Although an action by a father to recover the lost services of his minor son from one wrongfully causing the son's death is not an action for injury to the person, the rules relating to contributory negligence are applicable thereto. p. 165.

13. NEGLIGENCE---Contributory Negligence---Instruction as to Contributory Negligence---Held Erroneous as Shifting Burden of Proof.---In an action by the father of a minor son to recover damages for the son's death resulting from the negligence of the defendant, on instruction to the effect that before the plaintiff could recover, it must appear from all the evidence that plaintiff's son was guilty of no negligence that proximately contributed to his injury and death, was erroneous, as shifting the burden of proving contributory negligence. p. 166.

14. NEGLIGENCE---Contributory Negligence---When Plaintiff should Prevail on that Issue.---In an action for negligent injury, when evidence has been introduced on the subject of contribu- tory negligence, the plaintiff should prevail on that issue unless it appears by a preponderance of the evidence that the plaintiff was negligent and that his negligence proximately contributed to his injury. p. 166.

15. NEGLIGENCE---Contributory Negligence---Defendant may Avail Himself of Evidence Supplied by Plaintiff.---In an action involving negligence and contributory negligence, the defendant may avail himself of any evidence supplied by the plaintiff respecting contributory negligence. p. 166.

16. TRIALS---Instruction---As to Exercise of Care to Avoid Injury---Disapproved as Emphasizing Ability to Avoid the Accident.---In an action by a father to recover damages for the death of his minor son, resulting from defendant's negligence, an instruction to the effect that if it appeared from the evidence that plaintiff's decedent might have avoided the injury resulting in his death by the exercise of that degree of care and caution which a reasonably careful and prudent person would have exercised, and that, if the jury found that he did not exercise that degree of care at the time of the accident and, by reason thereof, was injured, the plaintiff could not recover, was disapproved as unduly emphasizing the ability of the deceased to avoid the accident. p. 167.

From Gibson Circuit Court; Luther Benson, Special Judge.

Action by Elmer Thompson against the Town of Fort Branch to recover damages occasioned by the death of plaintiff's minor son. From a judgment for an unsatisfactory amount, the plaintiff appealed.

Reversed.

J. M. Vandeveer, S. L. Vandeveer and Arthur S. Wilson, for appellant.

Sanford Trippet, W. D. Robinson, W. E. Stilwell, Morton C. Embree and Charles O. Baltzell, for appellee.

OPINION

Treanor, J.

The appellant, Elmer Thompson, as plaintiff below, sued the appellee, the Town of Fort Branch, Indiana, to recover damages occasioned by the death of the appellant's minor son, whose death was alleged to have been caused by the negligence of the appellee. The appellant sought to recover for lost services of his son and for funeral expenses. The cause was submitted to a jury for trial and the jury returned a verdict assessing plaintiff's damages in the sum of one dollar. Appellant assigns as error that the trial court erred in overruling his motion for a new trial. In his motion for a new trial the appellant relies upon the following grounds:

1. The verdict of the jury is not sustained by sufficient evidence.
2. The verdict of the jury is contrary to law.
3. Error in the assessment in the amount of recovery in this, to-wit: The amount of the damages assessed by the verdict of the jury is too small.
4, 5 and 6. That the court erred both in giving and refusing to give certain instructions.

In support of his points that the verdict of the jury is not sustained by sufficient evidence and is contrary to law the appellant discusses evidence bearing on the question of the amount of damages; appellant's theory being that, since the evidence shows damages greatly in excess of the amount of the verdict, the verdict is not sustained by sufficient evidence. It is well settled in Indiana that an assignment as cause for a new trial, that the verdict or finding is not sustained by the evidence, or is contrary to law, presents no question to this Court as to the amount of damages. But appellant's third cause for a new trial does present the question of inadequacy of damages unless, as contended by appellee, § 611 Burns Ann. Ind. St. 1926, Acts 1881, ch. 38, p. 240, stands in the way. It is true that § 611 prohibits the granting of a new trial "on account of the smallness of the damages in actions for an injury to the person . . ."; but we do not think that the instant action is one for "injury to the person" within the meaning of § 611. The pecuniary interest of a father in the services of his son was recognized and protected by the common law; and the father had a right of action against anyone who wrongfully deprived him of the services of a minor child.

"At common law, two actions lie for personal injuries to married women, infants, and servants. One by the husband, fathe
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