19 Ind. App. 474 | Ind. Ct. App. | 1898
— The appellant, administrator of the estate of Clara Diebold, deceased, sued the appellees, Carrie B. Sharp, Delphine B. Wells and the West
It appears from the special verdict that the appellant’s intestate was between twenty-one .and twenty-two years of age and unmarried, at the time of her death; that she left surviving her a father, two brothers and a sister, who were still living; that the expectation of life of the intestate was forty years; that she was a healthy and vigorous woman, capable of earning by labor five dollars per week; that she was working for the appellees Carrie B. Sharp and Delphine B. Wells, in the kitchen of a building owned by the appellee the Westminster Seminary Association, and occupied and used as a school building by said Sharp and Wells as lessees of said association, and that the intestate went into a certain closet in said building and struck a match, thereby causing an explosion which resulted in her death. No other facts affecting the question of the amount of damages are found.
Though the burden of proof was upon the appellant, his counsel practically assume in argument that he was entitled to the rendition of judgment in his favor
The right-to maintain a civil action for the death of a human being is purely statutory, and the proper basis for the assessment Of damages in such an action must depend upon the legislative intent as found by a proper construction of the statutes. Section 267, Burns’ R. S. 1894 (266, Horner’s R. S. 1897), provides: “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. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward.” Section 285, Burns’ R. S.. 1894 (284, Horner’s R. S. 1897),-is as follows: “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 lived, against the latter for an injury for the same act or omission. The action must be commenced
It is contended for the appellant, in effect, that finder the facts shown in the special verdict, the appellant, suing for the benefit of the father, brothers, and sister of the intestate, was entitled to recover an amount equal to the value of her life.
In Mayhew v. Burns, 103 Ind. 328, reviewing former cases, which are not in all respects harmonious, it was said of said sections 267 and 285 Burns’ R. S. 1894 (266 and 284, Horner’s R. S. 1897), that the reasonable and natural interpretation of the language employed in the first section is to give the parent who sustains injury by the death of his child a remedy for such injury in his own right, while the latter gives to the widow or next of kin, through the personal representative, a right to recover for any injury which they may have sustained by reason of the death of an adult, or one emancipated from parental services, and in whose life they may have had a pecuniary interest. It was said that during the continuance of the relation of parent and child the action is in the parent entitled to the child’s services; that this relation presumptively continues during the minority of the child, but if the relation continues after majority, the parent receiving support or service may nevertheless maintain the action, in which case the reasonable expectation of pecuniary advantage by the relation remaining may be taken into account and damages may be given for the probable pecuniary loss sustained by the parent; but that if the relation does not exist, the action is to be brought by the personal representative, regardless of the age of the deceased, provided
It was further said that where the wrongful act or omission occasions the death of an adult, or one not in the service of his parent, or in whose life a widow or next of kin may, on account of their relation or situation, have a pecuniary interest as such, the right of action is exclusively in the personal representative for their benefit. It was said further that under the first section the damages recoverable are arrived at from a consideration of the probable value of the child’s services from the time of the injury until it would have attained its majority, taken in connection with its expectancy and prospects in life, less the probable cost of support and maintenance, added to this the expenses of care, attention, etc., made necessary by the injury, while under the second section the damages are to be considered in each case according to its circumtsances; that in assessing damages resulting to the wife, children or next of kin, the ability of the deceased to have provided for the support and education of those dependent upon him, the number and degree of kindred mentioned in the statute, and their dependence upon him for support, are important considerations; that although it is not necessary to the maintenance of the action for the next of kin that the deceased should have been under a legal.obligation to render them support, it is nevertheless of consequence that their relation and situation should be shown with a view of affording a basis upon which to determine the pecuniary loss sustained.
In Louiville, etc., R. W. Co. v. Goodykoontz, 119 Inch 111, it is said in the usual clear and plain manner of Mitchell, J., “We know of no principle or precedent which sustains a recovery of damages for the death of
In Chicago, etc., R. R. Co. v. Branyan, 10 Ind. App. 570, an action brought by an administrator for the death of a young man nineteen years of age, it was said: “There is evidence tending to prove that Simons was earning $2.25 per day; that he was in good health; that there were, at the time of his death, other members of the family younger than himself, toward whose support he had contributed to some extent at least, and that in favor of a sixteen year old sister he. was carrying an accident policy of insurance for f2,000.00; that his mother was dead, but his father, who had manumitted or emancipated him was living.” It was held that there was evidence authorizing a verdict for more than nominal damages. The court remarked that it is not necessary, in order to authorize a recovery in such case, that the next of kin should have a legal claim on the decedent, but said that it should be borne in mind that the administrator, as their representative, is entitled to recover only for the pecuniary value they would probably have derived, taking into account all contingencies and uncertainties, had his .life not been terminated.
It appears in this verdict that the intestate was an
In such a case substantial damages cannot be presumed and arbitrarily given. Much latitude, doubtless, must be given to the discretion of the jury, but there must be some basis of fact upon which to predicate the finding of substantial pecuniary logs. The mere existence of the relationship of parent or brother or sister to the intestate, in connection with her capacity to earn for herself a certain amount weekly and the probability that she would have lived for a certain period, cannot furnish a reasonable basis for the calculation of pecuniary loss to her kindred. Whatever may be said of an action for the benefit of relatives dependent as a wife or child, the assessment of damages in a case like the one before us must proceed, not merely upon the pecuniary ability of the deceased, but rather upon the anticipations of pecuniary benefit which the surviving next of kin are shown to have had reasonable ground to indulge.
Whether or not, upon the facts stated in the verdict, the appellant was entitled to recover nominal damages, we need not decide, as we could not base the reversal of the judgment upon the determination of such a question. The judgment is affirmed.