160 Ind. 360 | Ind. | 1903
Elora J. Gipe, as administratrix of the estate of Sylvester H. Gipe, deceased, instituted this action against appellant and the Pennsylvania Company to recover damages for the alleged negligent killing of her decedent. Appellee voluntarily dismissed the action as against the Pennsylvania Company. Appellant demurred to the amended complaint for want of facts, its demurrer was overruled, and it excepted to such ruling, and assigns error thereon. On issues duly joined, there was a trial that resulted in a verdict and judgment for appellee. Appellant unsuccessfully moved for a new trial, and the further questions in this case are presented by an assignment of error based on the latter ruling.
It is sought by the amended complaint to make a case within the first portion of the fourth subdivision of the employers’ liability act (§7083 Burns 1901). But two objections are urged to such pleading: (1) Because deceased and the alleged negligent fellow servant were, at the time of the death of the former, engaged in the performance of duties as locomotive engineers, it is claimed that they were vice-principals, and that the statute does not impose a liability in such cases; and (2) that the condition of certain tracks, in the switch yard where decedent met his death, in respect to their crossing at an angle so acute as not to leave sufficient room for clearance for some distance on either side of the crossing, is shown to have been one of the assumed risks of' the employment'. We know of no reason why the statute should not be construed as creating a liability as between vice-principals. But we deny that it' appears that these employes were vice-principals. Appellant’s counsel, in their brief, speak of them as fellow servants, and the only basis for the claim that they were vice-principals appears to be the statement in some of our decisions that in cases
The second objection to the amended complaint is answered by the statement that the charge of negligence is not based on the situation of the tracks, but that the pleading is based on a charge of negligence upon the part of an engineer in the common service. If there are further objections to the statement of the cause of action, they stand as waived in this court by a failure to discuss them.
We pass now to a question that was presented under the issues based on the second paragraph of answer. The pleading mentioned stated, in substance, the following facts: That appellant was a party to an agreement among certain railroad companies whereby a so-called voluntary relief department was organized for the payment of fixed benefits to employes of said companies and their beneficiaries; that said department was maintained by the contributions of employes becoming members thereof, supplemented by the contributions of such companies, by virtue of a provision in said contract to meet' all deficiencies in the fund; that decedent became, and was at the time of his death, a member of said department, under a contract based on an application containing the following provisions: “And I agree that the acceptance of benefits from said relief fund, for injury or death, shall operate as a release of all claims for damages against said company, arising from such injury or death, which could be made by or through me, and that
A third paragraph of answer was filed, by which appellant answered the facts alleged in said second paragraph of answer, in bar only of the claim of the widow. The appellee replied to the special paragraphs of answer in two paragraphs, — general denial, and no consideration. The court instructed the jury, upon the close of the argument, that there could he no award of damages in favor of the widow, so we need not consider that feature of the case further. The court refused, however, to give a peremptory instruction to find for the defendant, and modified an instruction tendered by appellant, by adding these words: “But if as to the children of said deceased, such release, executed by said Flora J. Gipe, was without any consideration moving to or received for them in her trust capacity, the same would only bar the right of recovery for said Elora for her individual benefit, but would not bar a recovery for the benefit of said children.”
The appellant’s evidence in support of the averments of the second paragraph of its answer consisted largely of the various documents heretofore mentioned in connection with bur statement of the contents of said paragraph. The appellee offered no evidence in support of her reply, and the questions presented with reference to whether the defense on this branch of the case was made out will be discussed as we proceed.
At common law an executor or administrator had the same power over the personal estate of his decedent that the latter had at the time of his death. Farr v. Newman, 4 T. R. 621, note a, page 625; Weyer v. Second Nat. Bank, 57 Ind. 198; Latta v. Miller, 109 Ind. 302, 311; Parker v. Providence, etc., Steamboat Co., 17 R. I. 376, 22 Atl. 284, 23 Atl. 102, 33 Am. St. 869, 14 L. R. A. 414, and cases cited. His power to compromise has been often affirmed. Williams, Executors (7th Am. ed.), *815; Parker v. Providence, etc., Steamboat Co., supra; Chase v. Bradley, 26 Me. 531; Chouteau v. Suydam, 21 N. Y. 179; Rogers v. Hand, 39 N. J. Eq. 270, note.
In Underwood v. Sample, 70 Ind. 446, it was held that an executor might, upon a new and valuable consideration, extend the time of payment of a note. In Latta v. Miller, supra, this court held that upon a sufficient consideration an administrator might release one of the makers of a note,
Section 2454 Burns 1901 provides that: “Every executor, and administrator shall proceed with diligence to collect the debts and demands due the estate of the deceased,” and that, “where the interests of the estate may be promoted thereby, the court, or judge thereof in vacation, may order the executor or administrator to- compound debts.” Section 2456, supra, is as follows: “Where any debtor of a deceased person shall be unable to pay the whole or any part of the demand or claim of such person, or is insolvent or in doubtful circumstances, or where any legal or equitable defense is alleged against such debt or claim, the executor or administrator, with the approbation of the proper circuit court, or judge thereof in vacation, may compound with such debtor, and give him a discharge, upon receiving the avails agreed upon in such compounding or upon the payment of the same being sufficiently secured.” The next section (2457) authorizes executors and administrators, with the approbation of the court, to “file” such debts or demands “in said court, for the benefit of the creditors, heirs, and legatees of such deceased.” If the demand here in question, were within the description' of the class of demands • mentioned in the decedent’s act, we might have a different question to deal with. But the provisions of said act do not apply to the compromise of a demand of this nature. The supposed restrictive provisions of said act' clearly relate to debts and demands in favor of the estate of the deceased. The right of action that is given for wrongfully causing the death of another is regarded, not as a'continuation of the right of the deceased, but as a new cause of action existing in favor of the beneficiaries mentioned in the
If the person whom the statute authorizes to bring the action be regarded as acting in his capacity as executor or administrator, then, there being no restriction upon his authority to compromise in a case of this kind, by virtue of the decedent’s act, we may affirm his authority on common law grounds, since the common law, except as provided otherwise, is a part of the law of this State. §236 Burns 1901. If, on the other hand, he be regarded as a statutory trustee, his right to compromise may be affirmed as an incident to his power to suej and because of the general control that he must necessarily have over the action.
We proceed now to an examination of the ‘decisions as to the authority of the person who brings the action to-compromise. In Henchey v. City of Chicago, 41 Ill. 136, it was said: “Neither can we agree with appellant’s counsel in the 'position that the plaintiff had no power to make the stipulation by which the suit was dismissed. The statute vested in her, as administratrix, the right of action and the legal title to whatever damages were recoverable. This, of necessity, gave her the legal right to control the prosecution and disposition of the suit, as an administrator has in other cases. Whether the children who, with herself, were interested in the distribution of whatever damages might have been recovered, can call her to account for any error of judgment she may have committed in making this settlement, is a question to be decided when they make the attempt.” This ruling was followed in Washington v. Louisville, etc., R. Co., 136 Ill. 49, 26 N. E. 653; McIntyre v. Sholty, 139 Ill. 171, 29 N. E. 43; Brink's Express Co. v. O'Donnell, 88 Ill. App. 459. In the carefully considered case of Parker v. Providence, etc., Steamboat Co., 17 R. I. 376, 22 Atl. 284, 23 Atl. 102, 33 Am. St. 869, 14 L. R. A. 414, a like conclusion was reached. Under the Tennessee statute the widow has the right to sue, but the recovery
In the case last cited, where the children brought a somewhat anomalous action to recover against the original defendant their share of the money due under a compromise, where the money had been paid to the widow, the court, after referring to the earlier decisions in that state affirming the right of the widow to compromise, said: “The power to compromise the statutory right of action for all persons concerned carried with it, as a necessary consequence, a right on her part to receive for them the whole sum stipulated in the compromise. If the fact that the statute confers upon the widow the first right to sue, authorizes her to fix, by agreement, the aggregate amount to be paid by the wrongdoer to her and the children, it also authorizes her to receive that- amount for herself and them. Her bona fide compromise binds the children, and her bona fide receipt of the money paid under the compromise, likewise, and for the same reason, binds them.”
In Mississippi, under a statute substantially like the Tennessee statute, a widow made an agreement to compromise a pending suit to recover for the wrongful killing of her deceased husband. Her right so to do was challenged in Natchez Cotton Mills Co. v. Mullins, 67 Miss. 672, 7 South, 542, where the supreme court of that state said: “The widow alone had the right of action, and she had the right to accept satisfaction, and discharge the defendant.”
In Cogswell v. Concord, etc., Railroad, 68 N. H. 192, 195, 44 Atl. 293, the court, after pointing out the common law authority of executors and administrators to com
A very full and satisfactory discussion of the subject under consideration is found in Foot v. Great Northern R. Co., 81 Minn. 493, 84 N. W. 342, 83 Am. St. 395, 52 L. R. A. 354, where the question is discussed from the standpoint of the executor or administrator being a statutory •trustee. In that case the action was brought for damages under the statute; there was an answer of compromise, and a reply that the compromise pleaded was made without the knowledge or consent of the next of kin, and without the knowledge or consent of the probate court; that such settlement had never been ratified or confirmed by the next of kin or the court, and that the administratrix had never rendered any account of the money so received, but had converted the same to her own use. A demurrer was sustained to this reply, and in passing on the ruling the court said: “It will be noticed that the reply does not attack the settlement pleaded in the answer upon the ground that it was procured through fraud or misrepresentation. The only issue raised by the reply is that the former administratrix, Ellen Elanning, had no authority to make the settlement. The demurrer, therefore, raises the question whether, under G. S. 1894, §5913, the personal representative of the deceased person has power, without the assent of the next of kin and the probate court, to compromise a claim for damages. The right of action given under this
In proceeding to a consideration of the evidence, it is important to note, as before stated, that the issues based on the second paragraph of answer were limited to replies of general denial and no consideration. On this branch of the case counsel for appellee contend that there was no proof that “Flora J. Gipe, Admx.,” whose name was attached to the instrument of release, was Flora J. Gipe, administratrix of the estate of Sylvester II. Gipe, deceased. The argument is made that Flora J. Gipe may have been the administratrix of a number of other estates. While the administratrix was in nowise bound by the agreement made by her decedent in his application before referred to, yet when we find that the instrument of release refers back to the application of the deceased, and that it was provided in said application that the legal representatives of the applicant would execute any such further instrument as might be necessary to evidence the release of the claim for damages on account of the death of the applicant, it can only be inferred that the signature, “Flora J. Gipe, Admx.,” standing as it does in contradiction to the signature, “Flora J. Gipe,” was intended to evidence the assent of appellant to the provisions of said agreement.
Recurring to the second ground of objection that appellee’s counsel urge, it may be said that it is not necessary that the administratrix should have actually used or accounted for any part of the money paid, because she must account for her doings on the probate side of the court that appointed her as administratrix. It is not necessary to decide whether the release was contractual in its character, within the case of Stewart v. Chicago, etc., R. Co., 141 Ind. 55. If the release was a mere receipt, it would be at least evidence, and, in the absence of conflicting evidence, should have, been given its just effect.
This is .a case where the representative in the action has, upon a consideration, released the claims of all beneficiaries, and, in the absence of a further assault than was made under the issues and evidence in this case, we hold that her action concluded all rights that were subsidiary to that of the plaintiff. It follows that the court below erred in refusing to instruct the jury to find for appellant, and in submitting to the jury the question as to whether the second paragraph of reply to the second paragraph of answer was made out upon the evidence. Other questions are discussed by counsel, but it appears unnecessary to decide them.
Judgment reversed, with a direction to the trial court to sustain appellant’s motion for a new trial.