49 Ind. App. 40 | Ind. Ct. App. | 1911
This is an action for damages for the death of Raymond Liddil, based upon the alleged negligence of appellant. The action is brought by the administrator of Raymond Liddil for the benefit of the next of kin of said decedent, consisting of his mother, Sarah Sourwine, his half-brothers, Earl and Willard Sourwine, and his half-sister, Grace Sourwine. A demurrer to the complaint was filed and overruled, and appellant then filed an answer in general denial, and also an affirmative paragraph of answer, setting up the facts that decedent was the illegitimate child of Sarah Liddil, born out of wedlock, that his father was never married to Sarah Liddil, and that she afterward married a man named Sourwine, who died in October, 1905. A demurrer to this paragraph of answer was sustained. The case was tried upon the issues formed by the complaint and the answer of general denial, and a judgment was rendered in favor of appellee, from which this appeal is taken.
The action of the trial court in sustaining the demurrer to the second paragraph of answer is assigned as error, and this presents the question most strongly urged upon this court as a ground of reversal.
The demurrer to the second paragraph of answer admits that decedent was the illegitimate son of Sarah Sourwine. It is contended by appellant that, on account of such illegitimacy, he could have no next of kin for whose benefit the action could be maintained; that at common law a bastard had no father, and was considered the son of nobody, being sometimes called films nullius and sometimes films populi; that a statute giving a right of action for the death of a human being is in derogation of the common law, and must be strictly construed; that the persons named in the statute as the persons for whose benefit the action can be maintained excludes all others; and that a strict construction of our statute excludes the mother of an illegitimate child, and its half-brothers and -sisters from the class of beneficiaries known as next of kin, for whose benefit an action of this kind
In the case of Thornburg v. American Strawboard Co., supra, the appellant brought an action for the death of the illegitimate son of his wife. The court rightly denied a recovery in his favor, saying: “It is not necessary to decide who, if any one, was the proper party to bring this action, whether the mother or an administrator; that question is not before us. What we adjudge is that appellant, whether properly called a step-father or not, cannot maintain this action.” This case is easily distinguished from the case at bar, and what we have said in reference to the preceding case applies with equal force to this one.
In the case of Citizens St. R. Co. v. Cooper, supra, a woman brought an action under the provisions of §267, supra, to recover damages for the death of a child reared by her. It did not appear that she was its mother or that she had legally adopted the child. As the statute giving to a parent the right to recover damages for the death of a child is in derogation of the common law, and must be strictly construed, it will be seen at once that a person not standing in the relation of a parent could not recover by virtue of its provisions. Under the facts as presented, no other conclusion could be reached, and a recovery was properly denied.
The statute of Illinois confers upon illegitimate children practically the same rights in reference to inheriting and transmitting property by inheritance as are given by our statute. The supreme court of that state held that these statutes changed the status of a bastard at common law so as to permit its administrator to maintain an action for its death for the benefit of its mother, as next of kin. The case is exactly in point, and holds that under statutes such as ours the mother of an illegitimate child is its next of kin and its heir, and that an action may be maintained by the administrator of such deceased illegitimate child for her benefit, as its next of kin. Security Title, etc., Co. v. West Chicago St. R. Co. (1900), 91 Ill. App. 332.
In the case of Marshall v. Wabash R. Co. (1894), 120 Mo. 275, 25 S. W. 179, the supreme court of Missouri held that under a statute conferring upon a parent the right to maintain an action for the wrongful death of an unmarried
Our attention has been called to the cases of Alabama, etc., R. Co. v. Williams, supra, and Illinois, etc., R. Co. V. Johnson, supra. The first of these cases was an action by Susan "Williams to recover for the wrongful death of her illegitimate child. A recovery was denied, and, in the course of the opinion the court said: ‘ ‘ Counsel cite Marshall v. Wabash R. Co. [1894], 120 Mo. 275, 25 S. W. 179, where the right of the mother of a bastard to sue for his death was sustained. It will be seen on page 282 that the opinion, in fact, rests on two statutes of the State of Missouri, the first declaring the mother to be the natural guardian of her illegitimate child. We have no such statute in Mississippi. The second declares that the mother may inherit from her bastard child. We have no such statute in Mississippi. Here the mother of a bastard cannot inherit from him.” In the second case, the appellee brought an action for the
The phrase “next of kin” includes such persons as are entitled to inherit the personal property of the deceased person, Warren v. Englehart (1882), 13 Neb. 283. Under the statutes of our State the mother of an illegitimate child and her descendants and collateral kindred are entitled to inherit the personal property of such deceased child, and are therefore its next of kin. We recognize the rule that a statute in derogation of the common law must be strictly construed, and we regard §285, supra, as such a statute, but we do not think that a strict construction of this section will prevent the mother of an illegitimate child from being considered its next of kin within the meaning of this act.
vious that decedent must have known of them, and that the general averment of want of knowledge on his part is overcome by the special averments of the complaint showing knowledge, and that the complaint. is therefore insufficient to withstand a demurrer, inasmuch as it shows that the risk was assumed. The general averment of want of knowledge of the defects on the part of the person injured is sufficient, unless the averment is overcome by specific averments of facts that clearly show that the employe must have known of such defects, or that he had the same opportunity for knowledge as his employer. Louisville, etc., R. Co. v. Kemper (1897), 147 Ind. 561, 565; Baltimore, etc., R. Co. v. Hunsucker (1904), 33 Ind. App. 27; M. Rumley Co. v. Myer (1907), 40 Ind. App. 460.
In the case last cited this court said: “Where he is an infant, or otherwise lacking in discretion or judgment, there can never be any doubt but that he must be shown to have appreciated the danger before he can be charged with the assumption of the risk arising therefrom; and this, too, although the facts brought to his knowledge are sufficient to have warned one of ordinary capacity.” We think that the complaint is sufficient to withstand a demurrer.
We have carefully considered the questions raised and so ably presented by counsel, and we are of the opinion that there is no reversible error in the record. The judgment of the trial court is therefore affirmed.