Thornburg v. American Strawboard Co

• Decision Date: 04 June 1895
• Citation: 141 Ind. 443,40 N.E. 1062
• Parties: THORNBURG v. AMERICAN STRAWBOARD CO.
• Court: Indiana Supreme Court

141 Ind. 443

40 N.E. 1062

THORNBURG

v.AMERICAN STRAWBOARD CO.

Supreme Court of Indiana.

June 4, 1895.

Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Action by Charles L. Thornburg against the American Strawboard Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Elliott & Overton, for appellant. Blacklidge, Shirley & Moon, for appellee.

MONKS, J.

Appellant brought this action against appellee, under section 266, Rev. St. 1881 (section 267, Rev. St. 1894), to recover for the death of Charles O. Tonly, a minor. This section provides that: “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.” To this complaint, appellee filed a demurrer for want of facts, which was sustained, and judgment rendered against appellant. The only error assigned is that the court erred in sustaining the demurrer to the complaint. Under this assignment of error the only question for consideration is whether or not a man who marries the mother of a bastard child, and receives the child into his home as a member of the family, can recover for the death of the child, when caused by the wrongful act of another.

It is firmly settled that, under the foregoing section of the statutes, a parent may maintain an action for injuries resulting in the death of his minor child. Jackson v. Railway Co. (Ind. Sup.) 39 N. E. 663, and cases cited; Railway Co. v. Goodykoontz, 119 Ind. 111, 21 N. E. 472, and cases cited. It is also settled that section 266, Rev. St. 1881 (section 267, Rev. St. 1894), supra, and section 284, Rev. St. 1881 (section 285, Rev. St. 1894), are to be construed together; the first-named section being applicable to cases of minors, and the latter to those of adults, and minors whose father and mother have relinquished their right respectively to the services of the child by emancipation or otherwise. Berry v. Railroad Co., 128 Ind. 484, 28 N. E. 182, and cases cited. Such right to maintain an action for damages on account of the death of a human being is entirely statutory, and, before appellant can recover such damages, he must bring himself clearly within the terms of the statute. Jackson v. Railway Co., supra, and cases cited; Berry v. Railroad Co., supra, and cases cited; Railway Co. v. Goodykoontz, supra, and cases cited; Tiffany, Death Wrong. Act, § 116, and cases cited. It is an old and firmly-established rule that a statute in derogation of common law must be strictly construed. As this court said in Railroad Co. v. Keely, 23 Ind. 133, speaking of this class of actions, “As the right to sue is purely a statutory one, and in derogation of common law, the statute must be strictly construed, and the case brought clearly within its provision, to enable the plaintiff to recover.” Stewart v. Railroad Co., 103 Ind. 44, 2 N. E. 208. Such a right of action exists only for the benefit of the person or persons specified in the statute, and, when the statute specifies who may bring such actions, only those named can maintain it. If no such persons exist, then no recovery can be had. Berry v. Railway Co., 128 Ind. 484, 28 N. E. 182;Metcalf v. The Alaska, 130 U. S. 201, 9 Sup. Ct. 461; Telegraph Co. v. McGill, 6 C. C. A. 521, 12 U. S. App. 651, 57 Fed. 699, and cases cited; Railway Co. v. Needham, 3 C. C. A. 129, 10 U. S. App. 339, 52 Fed. 371. Section 266, Rev. St. 1881 (section 267, Rev. St. 1894), does not in terms give a right of action to a stepfather. As generally understood, the husband of one's mother by a subsequent marriage is a stepfather; strictly...