58 Ind. App. 306 | Ind. Ct. App. | 1914
Gotfried Wickstrom, deceased, while in tbe employ of appellant, received injuries wbicb resulted in bis death. Appellee administrator brought suit against appellant charging it with negligently causing his death. From a judgment therein in appellee’s favor for $4,000 this appeal is prosecuted.
The overruling of the motion for a new trial is the only error assigned and relied on for reversal.
The facts shown by the complaint and the evidence necessary to an understanding of the questions presented by the
Section 267 Burns 1914, supra, provides for the bringing of an action for the injury, or death of a child by the parent or guardian with no limitation as to the age of the child. In the case of Pittsburgh, etc., R. Co. v. Thing (1867), 27 Ind. 513, 519, it is said: “The word child, as employed in the 27th section [§267, supra], is not to be construed as equivalent to the word minor, but we think is limited in its application to one who occupies the position of a child to a parent, as depending upon him for protection, support and education, and cannot be held to include one who, although a minor, has assumed the relations and responsibility devolving upon the head of a family. Webster says, the word ‘is applied to infants from their birth, but that the time when
Again in the case of Mayhew v. Burns (1885), 103 Ind. 328, 333, 2 N. E. 793, it is said: “During the continuance of the relation of parent and child, the right of action is in the parent entitled to its services. This relation presumptively continues during the minority of the child. Pennsylvania R. Co. v. Adams [1867], 55 Pa. St. 499; * * * Pennsylvania R. Co. v. Zebe [1858], 33 Pa. St. 318. If the relation does not exist, then the action is to be brought by the personal representative, regardless of the age of the person whose death has been catised, provided there are persons sustaining such relation as that they may be supposed to have sustained pecuniary injury on account of such death.” (Our italics.)
As applicable to the last mentioned class, where the loss sustained is that of the parent of an adult or emancipated child this same author says:- “It is usually held necessary to lay a foundation for recovery for the plaintiff to show that the deceased, during his life, gave assistance to the beneficiaries, by way of money, services, or other material benefits, which, in reasonable probability would have continued but for the death. * * * The distinction taken in the English cases has generally been observed in the United
There is some evidence in this case which, under the rule just announced, would probably prevent a reversal of the judgment below on the said ground of excessive damages, but the amount of recovery, when considered in the light of all the evidence, is, to say the least, extremely liberal, and is such as to preclude our saying that it might not have been influenced by the erroneous instruction before considered. It follows that the giving of said instruction constituted harmful error and because of such error, the judgment below is reyersed with instructions to the trial court to grant a new trial herein and for such other proceedings as may not be inconsistent with this opinion.
Noto. — Reported in 104 N. E. 872. As to duty of master to servant, see 75 Am. St. 591. Measure of damages recoverable by parent for death, of minor child by wrongful act, see Ann. Cas. 1912 C 58. See, also, under (1) 26 Cyc. 1503, 1491; (2) 26 Cyc. 1182, 1196, 1185, 1186; (3) 13 Cyc. 385; (4) 13 Cyc. 350, 361; (5) 38 Cyc. 1612; (6) 36 Cyc. 1240, 1252; (7) 3 Cyc. 348; 13 Cyc. 387; (8) 22 Cyc. 690; (9) 31 Cyc. 737 ; 2 Cyc. 686; (10) 2 Cyc. 685; 18 Cyc. 1083; (11) 13 Cyc. 371, 373; (12) 13 Cyc. 367.