Wilson v. Jackson Hill Coal And Coke Co.
| Decision Date | 23 June 1911 |
| Docket Number | 7,629 |
| Citation | 95 N.E. 589,48 Ind.App. 150 |
| Parties | WILSON v. JACKSON HILL COAL AND COKE COMPANY |
| Court | Indiana Appellate Court |
From Sullivan Circuit Court; Charles E. Henderson, Judge.
Action by Rosa N. Wilson against the Jackson Hill Coal and Coke Company. From a judgment for defendant, plaintiff appeals.
Reversed.
William L. Slinkard, for appellant.
Bays & Bays, for appellee.
ADAMS J. Hottel, J., did not participate.
Appellant as the widow of James P. Wilson, brought this action against appellee for damages accruing to her 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 appellee on October 3, 1904, and survived until March 7, 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, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and upon appellant's refusing to plead further, and electing to abide by her exception to the ruling of the court, the judgment was rendered against her for costs.
The only error relied on by appellant for reversal is that the court erred in sustaining appellee's demurrer to appellant's complaint; and the only question argued by either side, in the presentation of this appeal, is whether the action of appellant was barred by the statute of limitations.
Appellee insists that as the complaint shows on its face that appellant's husband 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 § 8597 Burns 1908, Acts 1907 p. 253, which reads as follows: "For any injury to person or persons or property occasioned by the violation of this act, or any wilful 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 appellee that § 8597, supra, must be construed in connection with § 285 Burns 1908, Acts 1899 p. 405, which is as follows:
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. (1900), 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, it will admit of no exceptions not contained therein.
In the case of Pittsburgh, etc., R. Co. v. Hosea (1899), 152 Ind. 412, 53 N.E. 419, it is held that § 285, supra, creates a new and independent right of action, and does not continue to the personal representatives of decedent any right or cause of action vested in decedent; that the right provided by said section must rest upon the same wrongful act or omission giving decedent a right of action, and that if the decedent did not nor could not avail himself of it such statute, upon his death from such cause, 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. Ohio, etc., R. Co. (1892), 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, and the amount of the judgment was 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 the great weight of authority is with the principle announced in this case. Dibble v. New York, etc., R. Co. (1857), 25 Barb. 183; Whitford v. Panama R. Co. (1861), 23 N.Y. 465; Littlewood v. Mayor, etc. (1882), 89 N.Y. 24, 42 Am. Rep. 271; Read v. Great Eastern R. Co. (1868), L. R. 3 QB 555.
None of these cases, however, reaches the point made in this case. Section 285, supra, gives a right of action to the personal representatives of decedent, where the decedent 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 party injured, under the maxim actio personalis moritur cum persona.
Lord Ellenborough, in the case of Baker v. Bolton (1808), 1 Camp. 493, 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 a person 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 decedent 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 decedent 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. Owner of the Vera Cruz (1884), 10 App. Cas. 59; Pym v. Great Northern R. Co. (1863), 4 B. & S. 396.
The Indiana cases have followed this construction, and in Jeffersonville R. Co. v. Swayne's Admr. (1866), 26 Ind. 477, 484, the court said:
The only question before us is, Does the fact, shown by the complaint, that appellant's husband lived more than two years after his injury, bar the right of appellant to recover? In passing upon this question, we are not directly aided by any of the cases determined in this State, and must look to the adjudicated cases in other jurisdictions, and these cases are not in entire harmony.
The general principle, as laid down in 8 Am. and Eng. Ency. Law (2d ed.) 877, is that "where the statute follows Lord Campbell's act, the right of action conferred is for the wrongful death and is based thereon, and the fact that the decedent's right of action for personal injury had become barred will not affect the right of action conferred by the statute upon his survivors, unless there is some provision in the statute requiring the contrary."
In the case of Hoover's Admx. v. Chesapeake, etc R. Co. (1899), 46 W.Va. 268, 33 S.E. 224, the court said: ...
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