26 Ind. App. 41 | Ind. Ct. App. | 1901
The appellee as administrator of the estate of Jesse P. Conner, deceased, recovered judgment for $2,000 against the appellant as receiver of the Toledo, St. Louis, and Kansas City Railroad Company, for the death of the appellee’s intestate. There were two paragraphs of complaint, a demurrer to each of which was overruled. On the trial, the court reconsidered its ruling on the demurrer as to the first paragraph of the complaint, and sustained the demurrer to that paragraph, and the trial proceeded and the verdict for the appellee was rendered on the issue made upon the second paragraph of the complaint.
The second paragraph was based upon the alleged negligence of a train conductor, the intestate’s superior ‘officer, whose order the intestate was obeying in undertaking as a brakeman to perform the duty of setting the brake of a freight car, and the negligence of the engineer of the train, the railroad at the time (September 30, 1895,) being operated by a receiver appointed by the circuit court of the United States for the district of Indiana, as whose successor the appellant, since appointed by the same court, was still operating the railroad.
The appellee proceeded under our statute (§285 Bums 1894, §284 Horner 189Y) providing that when the death of one is caused by the wrongful act or omission of another,
It is agreed by counsel that at common law the facts stated in the second paragraph would not constitute a cause of action against the appellant, for the reason that they show that the injury to the intestate causing his death resulted from the negligence of his fellow servants, the conductor and engineer; and it is agreed that in this paragraph the right of recovery, if any, is founded upon the provisions of the employers liability act of 1893, §7083 et seq. Bums 1894, (except §7084 repealed in 1895), §5206s et seq. Homer 1897, Acts 1893, p. 294, Acts 1895, p. 148.
It is expressly provided in our employers liability act that when death results from an injury contemplated in that statute, “the action shall survive and be governed in all respects by the law now in force as to such actions,” reference being made to the above mentioned statute providing 'for recovery when the death of one is caused by the wrongful act or omission of another.
The only objection urged against the second paragraph of complaint is thus expressed by counsel for the appellant, referring to the statute of 1893 above mentioned: “It will be noticed that this enactment applies only to ‘every railroad or other corporation, except municipal, operating in this State.’ This action was brought against a receiver appointed by the United States court for the district of Indiana, and not against a railroad or other corporation, except municipal. Our contention is that this statute, being in derogation of the common law, cannot be construed or extended to include a class of persons not expressly named in the statute itself, and that therefore this statute cannot control the liability of receivers, they not being specifically mentioned in the act.”
In the statute there is no mention of receivers, and the
A chief purpose of the legislature in the enactment of the statute was to correct the hardship of the common-law rule as applied by the courts, in actions against employers, to recover damages for injuries suffered by their employes through the conduct of co-employes. The rule was not abrogated, but was conservatively limited, the new liability created being made to extend, not to employers carrying on their undertakings as individuals, but to those who conduct their business through corporate combinations, by which method the affairs of business life, for various reasons, had come to be carried on more and more, railroad corporations being specially mentioned in the act. Nor was this liability extended to the conduct of all employes by' which other employes are injured, but the classes of employes for whose conduct liability was so imposed were designated. Within these purposed changes, the supposed need and demand for which manifestly induced the enactment of the law, it is to be construed so as not to extend the increased liability beyond the expressed intention of the legislature. Though the statute thus effects a change in the common law, it is a remedial act, and for the purpose of advancing the remedy and carrying into effect the true beneficial purpose, it should be liberally construed with reference to the object uppermost in the mind of the lawmaker. The reason for such a remedial statute applies not more strongly to a corporation under the headship of an officer or officers designated by its charter or selected by the corporators, than to a corporation managed and controlled by the court’s receiver through persons who for the time being are his employes,
When an action is brought against a receiver of a corporation for damages suffered by the plaintiff through the management of the property of the corporation while in the custody of the receiver, he is regarded as the representative of the corporation, and is entitled to set up any defense which would have been available to the corporation if such damages had* been inflicted by it while in possession of its property. The action in such case is not against the receiver individually, but is against him in his official character. “It is the person whose property will be applied to the payment of the judgment who is the real defendant.” Bartlett v. Keim, 50 N. J. L. 260, 13 Atl. 7. A receiver of a railroad company is in general bound to perform such public duties connected with the operation of the road as the company was obliged to perform; and he is in general held liable for torts for which the corporation would be liable under like circumstances.
The grounds of public policy and necessity which lie at the foundation of the unquestioned liability of a receiver to pay out of the fund under his special control damages for the torts of his employes in the management of the property exist with the same real potency whether the torts be in violation of common-law duties or of statutory duties. One who has suffered from a wrong which a corporation' would be bound to redress if not under receivership has no more meritorious a cause than one who has suffered a like wrong under conditions differing only in the fact of the existence of a receivership; and if the injured person can have no remedy against the receiver, his injury would in general be without any substantial redress.
A receiver operating a railway under the control of the court exercises the franchises of the corporation for the
In Thompson on Corp. §7159, referring to the Texas decisions which deny the liability of a receiver under the statute of that state which gave a right of action for injuries resulting in death caused by the negligence of a proprietor,
In Elliott on Railroads, the learned authors in a chapter relating to employers liability acts, §1341, referring to the conflict in the cases upon the question whether statutes defining the duties and liabilities of railroad companies to their employes apply to receivers operating railroads under order of court, say: “We think that ordinarily such statutes do apply to receivers. * * * If he undertakes to operate the railroad he must do it upon the terms and conditions which the law prescribes, and the law as to the duty to employes operates upon him substantially as it did upon the railroad corporation to whose rights he succeeded.”
On the trial, the widow of the intestate, a witness on behalf of the appellee, testified without objection that the deceased was forty-one years of age, in good health; that he was sober and industrious; that he worked every day, and earned as wages $2 a day; that the witness was left without any means of support other than her own labor, after her husband died; that she had only what was in the house, valued at $50; and that the deceased left four children, the oldest a girl of fourteen. In her examination in chief, on behalf of the appellee, she was interrogated with reference to these children as follows: “Now, you may
It is contended on behalf of the appellant, in effect, that the plaintiff is entitled to recover only for pecuniary loss suffered by the beneficiaries, and that the attention of the jury must be directed and confined solely to the physical condition, habits of industry, ability to earn money and
It is admitted in argument that an afflicted child might be damaged to a greater extent by reason of the death of the father than a child not afflicted, but it is claimed that the question is, not how much the wife and each of the children separately by reason of her or its peculiar circumstances or condition has been injured, but how much would the decedent, if he had lived, probably have earned and left; that when this amount has been ascertained, it becomes the measure of their damages.
Our statute here in question does not define er in terms characterize the damages recoverable. It does not, as do some of the statutes of other states providing for recovery for causing death, designate the damages recoverable as pecuniary damages. Yet under the construction uniformly placed upon it, the damages must be pecuniary or material as distinguished from compensation for injury to the affections or sentiments. The recovery can not be for the injury to the deceased or for loss to his estate, but must be confined to loss suffered by the beneficiaries, for whose benefit the personal representative prosecutes the action as their trustee. Thqre can be no recovery of compensation by way of. solace for wounded feelings or for loss of the society and companionship of a relative. While the damages must be confined to loss of something to which a money value may be attached by the jury, they include compensation for losses which are difficult of exact estimation and the dam* ages for which are, and of necessity must be, left to the discretion of the jury upon somewhat uncertain data.
Where, as here, the deceased leaves a widow and infant children, the implication of law is that they sustain some injury which the wrongdoer must compensate in damages, the amount of which depends upon the evidence. Korrady v. Lake Shore, etc., R. Co., 131 Ind. 261; Louisville, etc., R. Co. v. Buck, 116 Ind. 566, 9 Am. St. 883, 2 L. R. A. 520. It is the duty of a husband and father to support his wife and children. There rests upon him the obligation toward his minor children of maintenance, care, nursing and medical attendance. Mayhew v. Burns, 103 Ind. 328; Malott v. Shimer, 153 Ind. 35. The obligation, disposition, and ability to earn wages or to conduct business and to care for, support, advise, and protect those dependent upon the father are proper matters to be shown to aid the jury in arriving at the amount of damages. Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357. The loss of parental training to which the children of the decedent would have been entitled if he had continued to live is a proper element of the damages. See Malott v. Shimer, supra. Where the action is brought for the benefit of the widow and children of the
In Board, etc., v. Legg, 93 Ind. 523, 47 Am. Rep. 390, it was held that the loss which may be taken into account is not confined to a loss of actual services capable of a direct and exact money admeasurement, and the court' commended the doctrine that compensation may be recovered for the loss of a parent’s care and training and education, it being remarked, in effect, that the capacity for the work of life which may thereby be increased may be valuable even in a pecuniary sense.
In Louisville, etc., R. Co. v. Rush, 127 Ind. 545, an action by a father for the death of his infant daughter, the court approved an instruction that in estimating the plaintiff’s damages the jury might consider the condition of his family at the time of the alleged accident, and take into account all the services that this child might reasonably have performed until her majority; and that such services might include actual labor in helping to carry on the household affairs and the pecuniary value of all acts of kindness and attention which it might reasonably be anticipated she would have performed for the plaintiff and his family until her majority, that would administer to their comfort as well as their necessities; but that the jury should not consider acts of affection, simply, and loss of companionship; and
In Hudson v. Houser, 123 Ind. 309, 316, the daughter of the decedent who had kept the expense account of the family was permitted to testify from her knowledge so gained, what, in her opinion, the household and living expenses of the family were per year during three specified years. This testimony was held to be competent as tending to show the loss sustained by the decedent’s family because of his death.
The child’s loss of his father’s care and training is one element in the true measure of damages, which is the pecuniary loss of those entitled to recover. Pittsburg, etc., R. Co. v. Burton, 139 Ind. 357, 377. The value of the services of the deceased to his wife and infant children until they attain their majority, of a personal character, and independent of those things purchasable from his earnings, should not be excluded from the jury’s estimate of the damages. These the jury in, the range of the discretion given them under the law and the evidence, and applying the results of their common observation and daily experience, may estimate and add to the net earning capacity of the decedent, after deducting his personal expenses, as they may be estimated.
The number of children, and their ages, together with the age and habits of the deceased, are proper matters for consideration in estimating the amount of damages. Board,etc., v. Legg, 110 Ind. 479, 481.
In Union Pacific R. Co. v. Dunden, 37 Kan. 1, 14 Pac501, it was said: “The jury had presented to them evidence of the parents of the deceased; their position in life; the occupation of the father; the condition of his health;
In Lockwood v. New York, etc., R. Co., 98 N. Y. 523, an action brought by an administrator for causing the death of his intestate who left seven children, all adults, it was held not error to admit evidence that the intestate’s daughter who lived with him was afflicted with some disease, and that therefore she was not able to work as she otherwise would have been.
In McKeigue v. City of Janesville, 68 Wis. 50, 57, 31 N. W. 298, an action by the personal representative for the death of a widow who left surviving her a number of children, some of them minors, it was held not error to permit the plaintiff to prove that two of the younger children were in poor health. It was said by the court that this was competent as tending to show that the loss of their mother was a pecuniary loss to them especially; that it was competent on the question of damages; and that because incidentally, under the statute, the other children might be benefited by this evidence, furnished no good reason for excluding it. See, also, Johnson v. Chicago, etc., R. Co., 64 Wis. 425, 25 N. W. 223.
In Pennsylvania Co. v. Keane, 143 Ill. 172, 32 N. E. 260, under a statute giving the action, which provided that the damages should be given as a fair and just compensation for the pecuniary injuries resulting from the death to the wife and next of kin of the deceased person, it was said: “It can not well be said that proof that the wife or next of kin of the deceased were, at the time of his decease, dependent upon him for support, or that he was her or their sole support, is wholly immaterial and irrelevant to any point at issue in the case.”
In Staal v. Grand Rapids, etc., R. Co., 57 Mich. 239,
In Baltimore, etc., R. Co. v. Mackey, 157 U. S. 72, 93, 15 Sup. Ct. 491, 39 L. Ed. 624, it was said, per Mr. Justice Harlan: “The statute giving the remedy expressly excludes the creditors of the deceased from any interest in the recovery, and declares not only that the judgment shall inure exclusively to the benefit of his family, but that the damages, not exceeding $10,000, shall be assessed ‘with reference to the injury’ done ‘to the widow and next of kin of such deceased person.’ Under such a statute, it is entirely proper that the jury should take into consideration the age of the deceased, his health, strength, capacity to earn money, and family. The injury done to a family consisting of a widow and helpless young children, who depended for support entirely upon the labor of a husband and father whose death was caused by the wrongful act of others, is much greater than would be done to any ‘next of kin’ able to maintain themselves and who have never depended, and had no right to depend, upon the labor or exertions of the deceased for their maintenance.”
Whatever may be the constructions placed by the courts of other states upon their own peculiar statutes, in this State, when the beneficiaries are the wife and children of the deceased, the damages are not restricted to the probable earnings of the deceased, but there may be added thereto the value of his personal services in the superintendence and care of his family and the education of his children and the performance of acts of paternal assistance to which he wpuld be legally obligated and which might reasonably be expected,
Counsel for appellant criticise instructions numbered two and five given to the jury at the request of the appellee. . By the former the court instructed that if the jury should find from the evidence that the appellee’s intestate was in the employ of the appellant on the 30th day of September, 1895, as a freight brakeman or yard switchman, at the city of Marion, Indiana, and that while in such employment he was then ordered and directed by the conductor or yardmaster or other person in charge of the train of cars upon the railroad of the appellant, to set the brake upon a car of the appellant, which car the appellant was then and there switching from appellant’s main track to appellant’s sidetrack, it was the duty of the intestate to obey such order or direction, using due care and caution in doing so. The
What we have said above in discussing the complaint in relation to the liability of the receiver for the negligent acts of his employes sufficiently disposes of the appellant’s objection to the fifth instruction.
Upon the matter on which the appellant’s learned counsel contend the evidence was insufficient, there was conflict in the testimony, and there being some evidence upon which the jury could decide the matter as it was decided, we can not disturb that result.
Judgment affirmed.
Henley, J., dissents from that part of the opinion holding that evidence of the physical condition of the children of decedent is admissible to enhance the damages.