—This suit was originally commenced in the circuit court of Butler County on August 16, 1911, by Berryl McGowan, a child about-two years old, by his father as next friend, .to recover for physical pain and mental anguish suffered by said Berryl resulting from burns received on account of the alleged negligence of defendant in failing to keep its right of way free from dead grass and weeds and other rubbish, so as to prevent the spread of fire communicated thereto by passing locomotives. The evidence showed that; the front yard of this child’s home adjoined the- defendant’s right of way, and that the child was burned on January 3, 1911, while in this front yard, by reason of a fire spreading thereto from the defendant’s right-of way, where it was started by a locomotive passing on defendant’s railroad. Pending this action by the father as next friend, and on October 30, 1911, said Berryl McGowan died. His death having been suggested to the trial court, the cause was continued to the January term, 1912. In the meantime the child’s father was appointed administrator of its estate and the cause was revived by such administrator filing his petition to the January term, 1912, of said court. The present plaintiff, who is the public administrator of Butler county, having succeeded the child’s father as administrator of its estate, filed another petition at the same term of court. This petition alleges the bringing of the suit by Berryl McGowan, by his father as next friend, for personal injuries to himself; the dеath of said Berryl, pending said suit and before it was tried, but without stating whether such death was the result of the injuries sued for or from an independent cause; the appointment of the father as administrator, his
It is well settled that this action cannot be maintained under section 105, Revised Statutes 1909, providing that an action for wrongs done to property rights or interests of another, for which an action might be maintained against the wrongdоer, may be brought after the death of the person injured by his executor or his administrator in the same manner and with like effect as an action founded upon contract. [Gilkeson v. Railroad,
The only authority of plaintiff for maintaining this suit as administrator is based on section 5438, Revised Statutes 1909, which provides that causes of action upon which suits have been or may hereafter be brought by the injured party for personal injuries, ‘ ‘other than those resulting in death, ’ ’ shall nоt abate by reason of his death, but shall survive to the personal representative of such injured party, and the liability and measure of damages shall be the same as if such death had not occurred.
The defendant challenged the sufficiency of the petition in this case as not stating facts sufficient to constitute a cause of action by objecting to the introduction of any evidence on that ground. Such objection was renewed in the motion for new trial and is insisted on here. The particular ground of objection now urged is that the petition fails to allege that the injuries received by Berryl McGowan, and for which this action is prosecuted by his administrator, did not result in his death. That the petition does not contain an allegation to this effect we think is plain from a reading of the same; in fact, the latter part of the petition, above quoted, would suggest that the injuries complained of did result in the death of this child, rather than the contrary. The statute in question, which was first
Under our statutes providing for the survival of such actions, it is essential both to allege and prove whether the injured party died as a result of the injuries sued for or from an independent cause, as this fact determines to whom and for whose benefit the cause of action survives, if at all. The statute now in question, section 5438, provides that if the injured party has already commenced his suit and dies, pending the same, from causes other than the injuries sued for, then the suit survives to his personal representative. If he should die as a result of the injuries sued for, then we must look to sections 5425 and 5426-7 to find to whom and for whose benefit the cause of action survives. When, as in this case, the personal representative undertakes to state a cause of action surviving to him as such for personal injuries to a person then dead, he must state that the injuries for which he is suing did not result in the death of the injured party; for on that depends his very right to maintain any such action. In this, or any similar statutory proceedings to recover for injuries to a deceased person, the party suing must bring himself within the terms of the statute
In Mathieson v. Railroаd, supra, the court said: “Where the right of the plaintiff to recover depends upon conditions stated in the same section'of the statute wMch gives the right of action, then the petition must allege the performance of those conditions or requirements, otherwise it will state no cause of action. [McIntosh v. Railroad,
In Barker v. Railroad, supra, the court said: “In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements, necessary to confer the right, and this must appear in Ms petition; otherwise, it shows no cause of action. ”
The case of Showen v. Railroad, supra, is directly in point and deals with this same statute, and holds that a petition, in all respects similar to the one in this case, does not state a cause of action and is fatally defective. In stating a cause of action for injuries inflicted on this deceased child, it is just as essential for his personal representative to allege that the injuries .inflicted did not result in his death as it is to allege •that the cMld was injured or that the injuries resulted from defendant’s negligence. There can be no doubt but that the petition in this case is fatally defective in tMs respect.
It is also an unquestioned proposition of law that where a petition is so fatally defective and lacking in
In Hegberg v. Railroad,
In McIntosh v. Railroad,
As we understand, learned counsel for plaintiff in effect concedes that the fact that the injuriеs sued for did not result in the death of the deceased is an essential averment of a good petition in the present case; but it is urged that the petition should be liberally construed and when so construed the averments are such as to be equivalent to an averment of this fact. In support of this we are cited to such cases as Wyler v. Ratican,
We have read the petition herein diligently to see if there is any such necessary inference to be drawn from the facts stated, but cannot so conclude. It is said that the fact that plaintiff only sues for $7500, instead of $10,000, as permitted under section 5426 where the injury results in death, shows this intent, but this is only so by supposing that the plaintiff would necessarily sue for' the largest amount recoverable in such a case. Nor does the allegation as to the injuries being permanent, and that deceased suffered great physical pain and mental anguish until his death reasonably exclude the idea that such injuries resulted in his death. In fact, the severity of the injuries, as set out in the petition, would lead one to believe that they did cause the death, especially in the absence of any other cause or averment relative thereto.
It is argued with much learning, and this presents the most difficult question in the case, that defendant by the position it assumed in the trial court, the evidence offered by it and instructions given at its request, tried the case, without objection, on the theory that the injuries sued for did not cause the death of .Berryl McGowan; and, in consequence, that defendant
In this, as in all questions of estoppel, we think the underlying principle is that the one party has caused or induced the other to do or refrain from doing something that will result to his. injury, provided the first party is allowed to tread back and trip up the heels of his adversary. Even if this doctrine can be allowed to counteract the proposition that the failure of the petition to state a cause of action can no more be waived than jurisdiction over the subject-matter (Epperson v. Telegraph Co.,
In view of another trial it should be pointed out that plaintiff’s first instruction purporting to cover the entire case and authorizing a verdict for the plaintiff
Error is alsо assigned on the ground that plaintiff has not shown any right to maintain this suit as administrator by competent evidence of his appointment and qualification as such. The answer does not specifically put this matter in issue and the rule is that, under a general denial and in the absence of a special traverse c 1 the allegation that the plaintiff is the lawfully appointed administrator, such allegation will be taken as admitted. [Baxter v. Transit Co.,
The evidence clearly shows that the defendant had allowed a large amount of dead and dry grass, weeds and vegetation to remain and accumulate on its right of way and that a passing locomotive set fire to this and the fire spread to the yard where the child had gone to play and that it was thereby severely burned. This shows actionable negligence at common law. [33 Cyc. 1338, and cases cited.] The evidence also shows a clear violation of the provisions of section 3150, Revised Statutes 1909, intended to more strictly enforce this common law duty of the railroads by requiring them to cut and remove, or destroy, all such dead and dry vegetation and undergrowth at specific intervals “for the purpose of preventing the spread of fire and the destruction of property,” and providing a penalty and making the offending company “liable for all damages done by said neglect of duty.” The chief contention of defendant at the trial was that this statute was intended to and does "protect property only, and that its violation does not render the defendant liable for injuries to a person. We are not impressed with this argument. The defendant concedes that if it had been some inanimate property or live stock lying or feeding in the grass and burned as this child was, that the defendant would be liable. It cannot be presumed that
This question will now be considered. Defendant contends that its failure to keep its right of way clear of combustible vegetation and the communication of fire thereto and its spread to the McGowan yard is not the proximate cause of the injuries to this child. It is urged that the child of its own volition wandered round into the flames; that the injury could not reasonably
The appellant lays great stress on the case of Logan v. Wabash Railroad,
Some criticism is made of instructions given for the plaintiff, which we have examined and find the same not tenable.
Other errors are complained of, such as improper remarks made to the jury in argument, and that the verdict is excessive. It is obvious that these matters need not be directly ruled on at this time, although we find no merit in the contentions.