Wilson v. Jackson Hill Coal & Coke Co.

• Citation: 95 N.E. 589,48 Ind.App. 150
• Decision Date: 23 June 1911
• Docket Number: No. 7,629.,7,629.
• Court: Court of Appeals of Indiana
• Parties: WILSON v. JACKSON HILL COAL & COKE CO.

48 Ind.App. 150

95 N.E. 589

WILSON

v.JACKSON HILL COAL & COKE CO.

No. 7,629.

Appellate Court of Indiana, Division No. 2.

June 23, 1911.

Appeal from Circuit Court, Sullivan County.

Action by Rosa N. Wilson against the Jackson Hill Coal & Coke Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed, with instructions.

William L. Slinkard, for appellant. Lee Fenton Bays and Fred Fenton Bays, for appellee.

ADAMS, J.

The appellant, as the widow of one James P. Wilson, brought this action against the appellee for damages accruing to herself and her three children on account of the death of her husband, who, as shown by the averments of the complaint, was injured through the fault and negligence of the appellee on the 3d day of October, 1904, and survived until the 7th day of March, 1907, when on account of said injuries, he died. The complaint is in one paragraph, and, as no question is raised as to the sufficiency of the allegations of duty, negligence, injury, and damages, as set out therein, a more extended statement of the facts averred in the complaint is unnecessary. The appellee filed its demurrer to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and the appellant refusing to plead further, and electing to abide by her exception to the ruling of the court, judgment was rendered against the appellant for costs.

The only error relied upon for reversal by appellant is that the court erred in sustaining the appellee's demurrer to the appellant's complaint, and the only question argued by either side in the presentation of this appeal is whether or not the action of the appellant was barred by the statute of limitation. The appellee insists that, as the complaint shows on its face that the husband of appellant lived for more than two years after receiving the injuries complained of, no right of action arose in favor of the widow. The suit was brought under section 8597, Burns 1908, being section 27 of the coal mining act of 1907, and reads: “For any injury to person or persons or property occasioned by the violation of this act, or any willful failure to comply with any of its provisions, a right of action against the operator shall accrue to the party injured, for the direct injury sustained thereby, and in case of loss of life by reason of such violation, a right of action shall accrue, first to the widow,” etc. It is urged by the appellee that section 8597, Burns, supra, must be considered and construed in connection with section 285, Burns 1908, which reads: “When 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 or she (as the case may be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow or widower (as the case may be) and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” We agree with appellee that all statutes of this state on the subject of death by wrongful act are in pari materia, and must be construed together. Elliott v. Brazil Block Coal Co., 25 Ind. App. 592, 58 N. E. 736. In this case it was held that the right of action for death by wrongful act abrogates the common-law rule, and cannot exist in the absence of an express statute. And, where a statute confers such right, the same will admit of no exceptions not contained therein.

In the case of Pittsburg, etc., R. Co. v. Hosea, 152 Ind. 412, 53 N. E. 419, it is held that the right of action given by section 285 creates a new and independent right, and does not constitute to the personal representatives of the deceased any right or cause of action vested in the deceased; that while the right provided by section 285, supra, must rest upon the same wrongful act or omission, if the deceased did not or could not avail himself of it, upon his death therefrom, the statute gives an action for the same cause to his representatives for the use of his widow and children. It is also established by the case of Hecht v. O. & M. Ry. Co., 132 Ind. 507, 32 N. E. 302, that where the injured party brought suit and recovered damages during his lifetime, including the damages for a disease superinduced by reason of his injuries, where the judgment was paid and received by the injured party, who afterwards died from causes growing out of his injuries, no cause of action would arise in favor of his personal representatives after his death. There are some decisions out of harmony with this holding, but we think that great weight of authority is with the principle announced in this case. Dibble v. N. Y. & E. R. R. Co., 25 Barb. (N. Y.) 183; Whitford v. Panama R. R. Co., 23 N. Y. 465; Littlewood v. Mayor, etc., of N. Y., 89 N. Y. 24, 42 Am. Rep. 271; Read v. Great Eastern Ry. Co., L. R. 3 Q. B. 555. None of these cases, however, reaches the point made in the case at bar. Section 285, supra, gives a right of action to the personal representatives of the deceased, where the deceased himself might have maintained an action for the same act or omission, had he lived. The right to recover damages for the negligent act or omission of another is a common-law right in the person injured, but there is no common-law right of action for the death of a human being, the right of action abating upon the death of the injured party under the rule actio personalis moritur cum persona. Lord Ellenborough, in the case of Baker v. Bolton, 1 Camp. 493, decided in 1808, laid down his famous proposition that “in a civil court the death of a human being could not be complained of as an injury.” This rule of the common-law was so harsh that it was abrogated in England in 1846 by the enactment of what is commonly known as “Lord Campbell's Act,” which in a more or less modified form has been enacted in practically all of the states of the Union. The right of personal representatives to maintain an action for the death of one by the wrongful act or omission of another was in the original act made conditional that the cause of action should be one that the deceased person himself might have maintained had he lived. Our act does not widely differ from the original act, which was early construed in England, and held that the right of action conferred was not the same as that which the deceased person would himself have had at common law, had he survived, but was a new and independent action given by virtue of the statute. Seward v. Vera Cruz, 10 App. Cas. 59; Pym v. Great Northern Ry. Co., 4 B. & S. 396. The Indiana cases have followed this construction, and in Jeffersonville Railroad Co. v. Swayne's Administrator, 26 Ind. 477, 484, the court said: “The statute does not profess to revive the cause of action for the injury to the deceased in favor of his personal representative, nor is such its legal effect, but it creates a new cause of action, unknown at the common law. The action given by the statute is for causing the death by a wrongful act or omission, in a case where the deceased might have maintained an action had he lived, for an injury by the same act or omission. The right of compensation for the bodily injury of the deceased, which died with him, remains extinct. The right of action created by the statute is founded on a new grievance, namely, causing the death, and is for the injury sustained thereby, by the widow and children, or next of kin of the deceased, for the damages must inure to their exclusive benefit.”

The immediate question, and the only one before us, is: Does the fact shown by the complaint that the husband of the appellant lived more than two years after his injury bar the...