Wabash R. Co. v. Cregan

• Decision Date: 03 October 1899
• Citation: 54 N.E. 767,23 Ind.App. 1
• Parties: WABASH R. CO. v. CREGAN.
• Court: Indiana Appellate Court

23 Ind.App. 1

54 N.E. 767

WABASH R. CO.

v.CREGAN.

Appellate Court of Indiana.

Oct. 3, 1899.

Appeal from circuit court, Carroll county; T. F. Palmer, Judge.

Action by Patrick Cregan, administrator of the estate of Henry Cregan, deceased, against the Wabash Railroad Company, to recover damages for the death of his intestate. There was a judgment for plaintiff, and defendant appeals. Reversed.Stuart Bros. & Hammond and Pollard & Pollard, for appellant. Hanley, Wood & Simms, M. A. Ryan, and John H. Gould, for appellee.

BLACK, J.

The appellee, Patrick Cregan, administrator of the estate of Henry Cregan, deceased, brought his action against the appellant to recover damages for the death of his intestate, caused by the negligence of the appellant, under the statute. Section 284, Horner's Rev. St. 1897 (section 285, Burns' Rev. St. 1894). There was a general verdict for the appellee, his damages being assessed at $600. The jury also found specially upon particular questions of fact stated to them in writing, in form of interrogatories, upon the requests of the parties. The motion of the appellant for judgment in its favor on the special findings in answer to interrogatories, notwithstanding the general verdict, was overruled, and judgment was rendered upon the general verdict.

In the complaint it was alleged that the decedent at the time of his death was 32 years of age, and was engaged in buying and selling cattle, and in the butcher business, in the city of Lafayette; that he was an expert in the knowledge of said business, and was earning money at the rate of $100 per month in such business at the time of his death; that he left, him surviving, as his sole and only heirs at law, his brothers, James Cregan and Patrick Cregan; and that said brothers were dependent upon him for their support, and for the profitable conduct of their business, at the time of his death. It was not claimed in the complaint that the deceased had rendered any service for either of his brothers, except as above mentioned, and it was not alleged that he had contributed any money or property to the support of either of his brothers. The jury specially found that the appellee's intestate was a man of ordinary intelligence, 32 years of age at the time of his death; that for some time before his death his occupation was that of a butcher and cattle buyer; that James Cregan and Patrick Cregan, mentioned in the complaint, are his brothers; that James Cregan was 42 years of age and Patrick Cregan was 38 years of age; that up to and for some time before the intestate's death he was working for his brother Patrick Cregan, and receiving for his services his board, washing, and $75 per month from said Patrick; that the intestate did not have any income except what he so received for his said services from his brother Patrick Cregan; that the intestate did not give any of his income received from said Patrick Cregan, or otherwise, to said Patrick Cregan; that the intestate did not contribute anything to said James Cregan; that the intestate at the time of his death did not leave any personal estate; that he did not die the owner of any real estate, except an interest in some real estate which he derived from his father and mother; that his said two brothers are ordinarily able-bodied men, and able to support themselves.

In this class of cases only pecuniary or material compensation to the beneficiaries can be recovered as damages. Board v. Legg, 93 Ind. 523. “Damages cannot be recovered for the death of a human being, except by or for the benefit of those who are supposed to have sustained a sensible and appreciable pecuniary loss therefrom. Pecuniary loss, not to the estate of the deceased person, but to those who had a reasonable expectation of pecuniary benefit, as of right or of duty, or from a recognized sense of obligation, from the continuance of the life, is the foundation of the action.” Railway Co. v. Goodykoontz, 119 Ind. 111, 21 N. E. 472. While it is not necessary to the maintenance of such an action as the one at bar that the deceased should have been under a legal obligation to render the beneficiaries support, it is important that their relation and situation be shown, with a view of affording a basis upon which to determine the amount of the pecuniary loss sustained. Pennsylvania Co. v. Lilly, 73 Ind. 252;Railway Co. v. Wright, 134 Ind. 509, 34 N. E. 314; Railroad Co. v. Branyan, 10 Ind. App. 570, 37 N. E. 190. In an action by a parent for the death of his child, there can be a recovery only for the pecuniary injury the father has sustained; and, to enable him to recover full damages for the services of the child during its minority, such damages must be declared for and demanded. Pennsylvania Co. v. Lilly, 73 Ind. 252. Where the beneficiaries are minor children of the decedent, pecuniary compensation for the loss of the parent's care and training to the children constitutes an element of damages. Board v. Legg, 93 Ind. 523. In Railway Co. v. Buck, 116 Ind. 566, 19 N. E. 453, it was said that the law will imply substantial pecuniary loss in some amount to the wife and child from the death of one who sustained the relation of husband and father to them, and who was at the time presumably receiving wages, and was therefore able to discharge his obligation to support those dependent upon him, and that when the relation of the decedent to those for whose benefit the suit is being prosecuted has been shown, and his obligation, disposition, and ability to earn wages or conduct business, and to care for, support, advise, and protect those dependent upon him, the matter is then to be submitted to the judgment and sense of justice of the jury. It has been held (Korrady v. Railway Co., 131 Ind. 261, 29 N. E. 1069) that where the complaint shows a wrongful killing, without contributory fault, and that the decedent left a widow and infant children surviving him, a cause of action is stated, although it is not directly alleged that the surviving kinfolks sustained actual damages; that the legal...