Vanosdol v. Henderson

• Court: Indiana Supreme Court
• Citation: Vanosdol v. Henderson, 216 Ind. 240, 22 N.E.2d 812 (Ind. 1939)
• Decision Date: 11 October 1939
• Docket Number: 27229.
• Parties: VANOSDOL v. HENDERSON.

22 N.E.2d 812

216 Ind. 240

VANOSDOL v. HENDERSON.

No. 27229.

Supreme Court of Indiana

October 11, 1939

Appeal from Hancock Circuit Court; Arthur C. Van Duyn, special judge.

Kane Blain & Hollowell, of Indianapolis, for appellant.

Othniel Hitch, of Indianapolis, for appellee.

SHAKE Judge.

This was an action for the alleged negligence of the appellant resulting in the death of the appellee's decedent. There was a jury trial and a verdict and judgment for the appellee. The appeal followed a denial of a motion for a new trial.

By an independent assignment of error the appellant calls for a review of the action of the Superior Court of Marion County where the suit was commenced, in sustaining the plaintiff's demurrer to the defendant's plea in abatement. It was alleged in the plea that the Union Traction Company was a domestic corporation, organized under the laws governing street railroad companies; that appellant was the duly appointed, qualified, and acting receiver of such corporation, by appointment of the Madison Circuit Court which court had and retained jurisdiction of said receivership; that appellant personally resided in Madison County; that he had been served with summons in said action by the sheriff of Madison County; and that he had no agent in Marion County authorized to accept service on his behalf. It is further charged that no leave had been obtained by the plaintiff from the Madison Circuit Court authorizing the institution or prosecution of the action.

After the demurrer to the plea in abatement was sustained, the venue of the cause was changed to the Hancock Circuit Court on the application of the appellant.

It is the contention of the appellee, as shown by the memorandum to his demurrer, that jurisdiction was properly in Marion County, by virtue of Chapter 147, Acts of 1929, § 2-705 Burns' 1933, Sec. 79, Baldwin's Ind.St.1934, which provides: 'An action against a railroad or canal corporation or company, or owner of a line of stages or coaches, for an injury to person or property upon the railroad, canal or lien of stages or coaches of the defendant, or upon liability as a carrier, may be brought in any county through or into which such railroad, canal, or line of stages or coaches passes; and an action may be commenced against a receiver without obtaining the consent of the court appointing such receiver; and the summons may be served in any county in the state.'

In urging that the above statute does not apply to the present action, the appellant asserts that this being a suit to recover damages for an alleged wrongful death, it is not one for injuries to the person within the contemplation of the above act. In support of his position he relies heavily upon the case of City of Indianapolis v. Willis, Administrator, 1935, 208 Ind. 607, 194 N.E. 343. On the other hand, the appellee leans exclusively upon the statute and the case of Watson v. Brady, 1933, 205 Ind. 1, 185 N.E. 516.

In the Watson case which, incidentally, was one against this same receivership and for damages for an alleged wrongful death resulting from the same accident, this court said (205 Ind. page 6, 185 N.E. page 518): 'A REASONABLE CONSTRUCTION OF THIS ACT [ch. 147] makes it applicable in cases where the injury results in death, as well as where it results in personal injuries short of death.' Further along in the opinion the court observed (205 Ind. page 7, 185 N.E. page 518):

'The records show that the appellee [the receiver] filed a motion for a change of venue from Marion county, and the cause by agreement was sent to Shelby county, and therefore the appellee waived any right he might have had to object to the jurisdiction of the Shelby circuit court over his person. * * *

'There can be no question as to the fact that it was not necessary to obtain the consent of the court that appointed the receiver to begin the action.'

In the case at bar the plea in abatement was presented, a demurrer thereto sustained and an exception reserved prior to the change of venue. There has therefore been no such waiver of jurisdiction here.

The Willis case, 208 Ind. 607, 194 N.E. 343, considered a statute regarding actions against municipalities for injuries to person or property. Ch. 153, Acts 1907, § 11230, Burns' R.S. 1926. The pertinent language of the statute read as follows: 'No action in (for) damages for injuries to person or property resulting from any defect in the condition of any street, alley, highway, or bridge, shall be maintained against any city or town of this state unless written notice containing a brief general description of the time, place, cause, and nature of such injury shall, within sixty days thereafter, or if such defect consists of ice or snow or both, within thirty days thereafter, be given to the clerk or mayor or members of the board of trustees of such city or town.' In holding that the words, 'action in (for) damages for injuries to person,' as used in said statute, did not embrace actions for damages for wrongful death, this court said (208 Ind. page 614, 194 N.E. page 346): 'The distinction between an action to recover damages to the person and an action to recover for a wrongful death is so different and so clearly defined and recognized by the courts that we are forced to the conclusion that section 11230, supra, has no application to actions by an administrator to recover damages for the wrongful death of his decedent, but must be limited to actions designated in the statute.'

Appellant urges, with much logic, that the Willis case, as the last expression of this court on the subject, must prevail over the Watson case unless the latter is to be distinguished on the ground that under the facts appearing therein there was a waiver of the question of jurisdiction by the acts of the receiver in asking for a change of venue from the county where the cause was filed and in agreeing that it might be sent to the court from which that appeal was prosecuted. If such distinction is to be recognized the Watson case is not controlling in the consideration of the case now before the court because, as pointed out above, there was no such waiver of the jurisdictional question by any act of this appellant.

The apparent conflict between the Watson and Willis cases can not be reconciled by any cursory examination of the respective statutes which they consider. Both acts employ substantially the same language--that is, 'action * * * for an injury to person or property,' and, 'action in (for) damages for injuries to person or property.' It is therefore necessary to look beyond the express wording of the acts and to inquire into their character, scope, and functions in order to ascertain if their respective clauses quoted above are to be construed alike.

The municipal act (Ch. 153, Acts 1907, § 11230, Burns' R.S.1926) was an independent statute imposing a condition precedent upon the right to maintain actions against cities and towns for injuries to persons and property. The right to sue in such cases already existed and the limitation imposed by the statute became an incident to a pre-existing remedy. There is no right of action for wrongful death, however, except insofar as it is authorized by statute. Statutes creating rights not given by the common law are always strictly construed and one seeking relief thereunder must bring himself clearly within the terms of the act. Shake v. Board of Commissioners of Sullivan County, 1936, 210 Ind. 61, 1 N.E.2d 132. Since the only effect of the act of 1907 was to impose a limitation upon an existing remedy as it related to actions for injuries to persons and property, it should not be construed to apply to cases or classes of cases not necessarily embraced in its terms. It was therefore proper that in construing the municipal act in the Willis case this court should not give the words, 'action in (for) damages for injuries to person or property,' found therein, a broader meaning than the literal language required and that these words should not be held to embrace actions for damages for wrongful death.

The railroad act with which we are presently concerned is one of a wholly different character. Ch. 147, Acts 1929, § 2-705 Burns' 1933, Sec. 79, Baldwin's Ind.St.1934. It does not create or relate to a new remedy as such. It is purely procedural. Its very title is: 'An Act to amend section 34 of an act entitled 'An act concerning proceedings in civil cases,' approved April 7, 1881.' Another section of the act of which chapter 147, Acts of 1929, is amendatory, provides that: 'The provisions of this act shall be liberally construed, and shall not be limited by any rules of strict construction.' Ch. 38, § 860, Acts 1881, Spec.Sess., § 2-4703, Burns' 1933, Sec. 1220, Baldwin's Ind.St.1934. Statutes relating to procedure are always to be construed liberally, the effective administration of justice and the saving of labor and expense to litigants being the objectives to be kept in view. 59 C.J., p. 1129, § 669. It was therefore entirely proper to construe the words, 'action * * * for an injury to person or property,' found in the act of 1929, as including actions for damages for wrongful death, as was done in the Watson case. There was nothing inconsistent or incompatible in the holdings of this court that the clause, actions for injuries to persons, as used in the railroad act, included actions for wrongful death, but that said clause, as was used in the municipal act, did not include actions for death. The distinctions are justified by the application of the rule of strict construction in the one case and of liberal construction in the other. We conclude that the Superior Court of Marion County did not err in sustaining the plaintiff's demurrer to the defendant's...