« ForrigeFortsett »
E. 290; Commonwealth v. Sylvester, 13 Allen (Mass.) 247. A single quotation from the case of the United States v. Freeman, supra, will illustrate the force of the rule just stated, which is supported by the authorities cited. Mr. Justice Wayne, in delivering the opinion of the court, said: “The correct rule of interpretation is that if divers statutes relate to the same thing, they ought to be taken into consideration in construing any of them, and it is an established rule of law that all acts in pari materia are to be taken together as if they were one law. Doug. 30; 2 T. R. 387, 586; 4 Man. & Sel. 210. If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute (Ld. Raym. 1028); and if it can be gathered from a subsequent statute in pari materia what meaning the Legislature attached to a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the same statute." Statutes of the
the United States granting pensions to disabled soldiers and seamen, and in case of death, to widows, etc., have, so far as we are advised, used the words, “in the line of duty.” This expression has been under consideration many times in passing upon claims for pensions.
In 1855, Caleb Cushing, Attorney General of the United States, gave to the Department of the Interior an opinion in which he put an interpretation upon such expression, in which he said:
* The statute employs a phrase which is definite, though comprehensive, 'the line of duty.' He who contracts disease, or dies in consequence of the ordinary performance of his military duty, or in the performance of any special act of military duty, whether at the moment of performance he were on duty or off duty, in active service or on furlough, or habits virtuous or habits vicious, gallantly fighting his country's enemy, or expiating an offense in the guardhouse or prison bay-he, I say, who, in these or any other circumstances, contracts it'in the line of duty. On the other hand, neither the bad man, who dies of his incorrigible vices, nor the good man, who, at the full maturity of blameless life, dies in the course of nature of any of the maladies incident to old age, can be said to die of disease contracted while in the line of duty.' In fine, the phrase, 'line of duty,' is an apt one to denote that an act of duty performed must have relation of causation, mediate or immediate, to the wound, the casualty, the injury, or the disease producing disability or death.” 7 Op. Atty. Gen. 149; 2 Dec. Dept. Int. Pensions, 403. In Rhodes v. United States, 79 Fed. 740, 25 C. C. A. 186, which was an action to recover from Rhodes what was claimed had been paid to him by reason of his fraudulent representations, the court approved the following instruction: “Second. If, under the fore
going general directions, you find either that the defendant never had the disease in question before he enlisted, or that he had been afflicted therewith, but had entirely recovered therefrom, before his enlistment, then, inasmuch as there appears to be no doubt but what he suffered from the disease while in the service, you must next inquire whether he contracted it in the line of duty. This means that he must have contracted the disease as a result of his service, or as a result or by reason of the fact that he was in the service. The service must have been the cause of the disease, not merely coincident in time. An attack of epilepsy, for instance, while a soldier in the army, not resulting from any connection with the army, or any risk, hazard, or danger thereof, but as a result of an hereditary predisposition, would not entitle a soldier to a pension, on the ground that he contracted that disease while in the service, because such disease would not have been contracted in the line of duty." The court in that case adopted the interpretation of the words "in line of duty": put upon them by Attorney General Cushing, and further said: “The fact that after this construction Congress has retained this expression for more than 40 years, although it has repeatedly revised and amended the pension laws, amounts to a demonstration that Mr. Cushing and the court below properly interpreted its meaning.” The claim of Gillespie for pension further illustrates the interpretation of the words "in line of duty." 2 Dec. Dept. Int. Pensions, 16. The claim was based upon an injury claimant receiy. ed in an altercation with a member of his company, in which the latter struck Gillespie upon the head with a board and injured his skull. The claim was disallowed, upon the ground that the injury was not received while he was in "the line of duty," and in disposing of the case it was said: "But the fact that claimant did not sustain a culpable relation to the cause of his disability does not, by reason of the same, affect his title to pension. The question involved in the claim is not whether claimant was to blame for the conduct of his assailant, but whether the blow struck by the latter was a necessary, or even a reasonable, incident of line of duty in the service."
In the case of Harding's application for a pension (2 Dec. Dept. Int. Pensions, . 232), where his injury was a partial paralysis of the brain caused by a saber cut or blow while on a boat, and while asleep in his bunk, and was mistaken by a comrade for another, the claim was rejected upon the ground that the injury was not received while in "service and in the line of duty." In passing upon the claim it was said: “The department holds in this and all similar cases that the wound, injury, or disease must be the natural, probable, or proximate result, either mediate or immediate, of soldier's military
duty, and that the phrase 'line of duty' denotes that an act of duty performed in order to entitle claimant to a pension must have relation of causation, mediate or immediate, to the wounds or injury received or the disease contracted, and which produced the said disability or death. It cannot be reasonably claimed that the assault upon the claimant by his comrade, the result of mistaken identity, was the logical incident or probable effect of duty performed in the service. The question is not whether the soldier was in line of duty at the time he received his injury, in the sense that he was not disobeying any military law, rule, or regulation, or guilty of any culpable negligence, but rather what is the quality or condition of the act which produced the injury of which complaint is made? Claimant was not wounded or disabled because he was a soldier." In the claim of Ammerman for pension (1 Dec. Dept. Int. Pensions, 5), the claim was rejected on the ground that the cause of the disability or of death giving title to pension must in some manner pertain to, and have a natural and logical connection with, the military service, and to line of duty in said service. Upon the authorities and principle, we are forced to the conclusion that the facts pleaded do not show that the deceased came to his death while in the line of his duty, nor in the discharge of any duty, as a policeman.
This disposes of the case except as to one proposition. It is urged by counsel for appellant that the death of the deceased in the manner detailed in the complaint was death by accident, upon the theory that death by suicide by an insane man is death by accident, "just as much as if the deceased had fallen from the top of a house."
This proposition is affirmed by some authors and decisions. Bacon on Benefit Societies & Life Insurance (3d Ed.) $$ 496, 396; Accident Ins. Co. v. Crandall, 120 U. S. 527, 7 Sup. Ct. 685, 30 L. Ed. 740, and authorities there cited. This rule, however, is not the test by which the question before us is to be determined. There is no averment in the complaint that the insanity of the deceased was caused by reason of his being a policeman, nor that it resulted from the discharge of any duty as such. An insane man is irresponsible for his actions, and it is upon this basis that suicide by an insane person is held to be an accident, as indicated by the authorities just cited. The question of some difficulty here is that we are dealing with a special statute which gives certain rights upon specific conditions. One of the conditions that gives such right to the widow and orphans of a policeman is that the latter
should come to his death while in the line of his duty, and, as we have seen, "and as a result of the performance of his duty,” and that there be some connection between the death and the “line of duty” or the “performance of duty." Going to the complaint we find an entire absence of any connection between the act which produced death and the performance of any duty enjoined upon the deceased. In other words, the complaint does not charge that the insanity was the result of the performance of any duty. This, it seems to us, is essential. In claims for pensions under the laws of the United States, based upon insanity, or upon death from suicide while in a state of insanity, it must be shown that the insanity was the result of, or incidental to, acts of duty, before it can be said that the soldier died "while in line of duty." 7 Op. Atty. Gen. 149; 2 Dec. Dept. Int. Pensions, 403 (407) ; In re Claim Stack, 2 Dec. Dept. Int. Pensions, 153; In re Claim Gallagher, 2 Dec. Dept. Int. Pensions, 332. Attorney General Cushing, in his opinion, supra, said: “Thus, in one of the cases referred to in your letter, and upon which you have already ruled, a case of suicide, it was held, and properly, not only the suicide is not of itself a pension. able cause of death, but also that, if the suicide is alleged to have been produced by insanity, and thus insanity be put forward as the causa causans, then it must be shown that the insanity was the result of, or incidental to, acts of duty.” A case directly in point is that of Gallagher, 2 Dec. Dept. Int. Pensions, 332, where it appeared there was an entire failure of proof connecting the insanity or suicidal mania of the soldier with his army service, and in passing upon the claim it was said: “This is a missing link in the chain of evidence which is absolutely essential to make out a proper case for the allowance of pension, and, unless supplied, it is necessarily fatal to the claim. It seems to be reasonably certain, from the testimony on file, that the soldier's death resulted from poisoning by arsenic, administered by himself with suicidal intent while the victim of dementia or mania, and when, therefore, he was irresponsible for his actions, and also that he had suffered more or less at intervals from attacks of said dementia or mania for some years subsequent to his discharge from the service, and prior to his death.” These authorities settle the question against appellant.
We are clearly of the opinion that, under the facts pleaded, appellant has not brought herself within the statute, and that she has no right of recovery.
(169 Ind. 291)
ditch has been ordered established, or in CLEMANS et al. v. HATCH et al. (No. which there is no attempt to and which will 20,740.)1
not lower or affect any lake or body of water (Supreme Court of Indiana. Nov. 23, 1906.) that has to exceed ten acres of surface at STATUTES - RETROACTIVE OPERATION-ESTAB high water mark, and such proceedings and LISHMENT OF DRAINS.
all remedies in relation thereto shall be conActs 1905, p. 480, c. 157, § 14, relating to
cluded and be effective in all respects as if the establishment of drains, repealing all laws theretofore enacted relating to drainage, but pro
this act had not been passed." This section viding that such repeal shall not affect pending seems quite obscure except upon one theory, proceedings in which a ditch has been ordered
and that theory may be indicated by reading established, or in which there is no attempt to
that part of the language which follows the and which will not affect any body of water that has to exceed 10 acres of surface at high
general provision for a repeal in the followwater mark, saves pending proceedings which ing manner: "Such repeal shall not affect will not affect any body of water that has to
any pending proceedings, in which (pending exceed 10 acres of surface at high-water mark,
proceedings] a ditch has been ordered estab. though the ditch has not yet been ordered.
lished, or in which [pending proceedings] Appeal from Circuit Court, Miami Coun
there is no attempt to and which will not ty; J. N. Tillett, Judge.
lower or affect any lake or body of water Petition by David Clemans and others
that has to exceed ten acres of surface at against John Hatch and others for the es
high water mark, and such proceedings (that tablishment of a drain. From a judgment
is, pending proceedings] and all remedies dismissing the proceedings, petitioners ap
in relation thereto shall be concluded and peal. Reversed and remanded.
be effective in all respects as if this act had Cox & Andrews and Essick & Montgomery, not been passed.” It will be observed that. for appellants. Lawrence & Rhodes, Frank
the first limitation which the section places D. Butler, Reasoner & Ward, and R. J. Love upon the general provision for repeal is that land, for appellees.
it shall not "affect” two classes of pending
proceedings, namely, those in which a drain GILLETT, J. This proceeding was in has been ordered established and those in stituted by appellants before the board of which there is no attempt to lower or affect commissioners of Miami county to establish a lake. This provision, so far as it related a drain in the counties of Fulton and Miami. to drains which had been ordered established, Prior to the making of an order establishing was doubtless intended as a disclaimer of the ditch, the act of March 6, 1905 (Acts all purpose to attempt to affect any proceed1905, p. 456, C. 157, § 5622 et seq., Burns' ing which had been crystallized into the final Ann. St. Supp. 1905), became a law. The judgment of a court; something that the court below dismissed the proceedings, and Legislature was not authorized to disturb, rendered judgment for costs against appel but when the General Assembly came to deal lants. The question which this appeal pre. with other pending proceedings—that is, prosents is whether the act aforesaid deprived ceedings anterior to such a final orderthe board of jurisdiction.
provision was made, as we construe the statAppellants' counsel contend that section 14 ute, that such proceedings not only should of said act saved pending proceedings, and not be affected by the repeal provided that also such proceedings were saved by virtue there was no attempt to drain a lake or body. of section 2, Rev. St. 1852, p. 430 (section 243, of water, but that "such proceedings" (that Burns' Ann. St. 1901). Counsel for appellees is, pending proceedings), and all remedies contend that, as the drain had not been in relation thereto, should be concluded and ordered established, the board lost jurisdic be effective in all respects as if the act had tion to proceed, and they base their claim on not been passed. The question as to the what they conceive to be the proper con proper construction of section 14 was before struction of said section 14. They also deny us in Taylor v. Strayer (at this term), 78 that section 2 of said act of 1852 has any N. E. 236, and it was there said: “It was application to suits instituted under statutes also the expressed intent of the Legislature passed subsequent to said enactment, and in to save all pending proceedings which had support of this view they call attention to not progressed to final judgment, provided the title of said law. We are not called the proposed ditches were not designed to on to consider the validity of the latter con and would not affect lakes of the surface tention, as we have reached the conclusion area named." This construction of the section that the proceedings in question were saved still commends itself to our judgment, and by section 14 of the act of 1905. Said sec we therefore hold that the court below erred tion in part provides: "All laws and parts of in the action taken by it. laws heretofore enacted in relation to drainage Judgment reversed, with an order for furare hereby repealed, but such repeal shall not ther proceedings not out of accord with this affect any pending proceedings in which a opinion. 78 N.E.—6716
a Rehearing denied.
(39 Ind. App. 21) ZIEGLER V. ZIEGLER et al. (No. 6,283.)1 (Appellate Court of Indiana. Division No. 2.
Oct. 30, 1906.) 1. INFANTS-SUITS BY NEXT FRIEND.
Under Burns' Ann. St. 1901, § 2684, authorizing the court to appoint a guardian ad litem to defend the interest of any minor impleaded in any suit, and to permit any person as next friend to prosecute any suit in a minor's behalf, and section 259, providing that an infant defendant shall appear and defend by guardian appointed by the court, an infant defendant can prosecute an action by cross-complaint only by a next friend.
(Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Infants, 88 192, 195.] 2. APPEAL-PARTIES—WAIVER OF OBJECTION.
Under Burns' Ann. St. 1901, § 342, Burns' Ann. St. 1894, § 346, Rev. St. 1881, § 343, and Horner's Ann. št. 1897, § 343, providing for a demurrer when the plaintiff has not legal capacity to sue, and if the same does not appear on the complaint or cross-complaint, then by plea in abatement, where the right of a guardian ad litem of an infant defendant to file a crosscomplaint in the trial court was not objected to, the right to raise such question on appeal was waived.
(Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, 88 1121-1132.]
Appeal from Superior Court, Vanderburgh County ; Alexander Gilchrist, Judge.
Action for partition by Jacob Ziegler, Sr., and others against Jacob Ziegler, Jr., by James T. Walker, guardian ad litem. From a judgment for plaintiff, defendant appeals. Motion to dismiss. Overruled.
Iglehart & Taylor, for appellant. Peter Maier, for appellee.
terests of any minor impleaded in any suit and to permit any person as next friend to prosecute any suit in any minor's behalf.” It is further provided by section 259, Burns' Ann. St. 1901, that "an infant defendant shall appear and defend by guardian appointed by the court, or chosen by the said infant with the consent of the court.” “The extent of the authority of a guardian ad litem, must be found in the statute authorizing his appointment and in the order of the court made in pursuance thereof. The statute above quoted imposes upon such guardian the duty to defend and not to prosecute suits on behalf of a minor.” Gibbs v. Potter (Ind. Sup.) 77 N. E. 944. In Shannon v. Hay, 106 Ind., at page 589, 7 N. E. at page 376, it is said : "Infants may defend by a guardian ad litem, but they cannot over objection thus prosecute an action either upon a complaint or a crosscomplaint. They can prosecute only by next friend as provided by statute." In the case from which we have first quoted a demurrer was filed and sustained to the cross-complaint. In the second case a motion to strike out the cross-complaint was sustained. In both cases the lower court was given an opportunity to pass upon the legal capacity of the guardian ad litem to sue. In the case at bar, no objection was made to the action of the guardian ad litem, either by demurrer or by motion. In DePriest v. State ex rel. Morris, 68 Ind. 569, it is held that an objection to the trial and judgment upon the ground that no guardian ad litem had been appointed for an infant defendant in a bastardy suit, could not be made for the first time in the Supreme Court. Rawles v. State ex rel. Ford, 56 Ind. 433; Evans v. State ex rel. Rinert, 58 Ind. 587, are to the same effect. The right of a minor defendant to file a cross-complaint by guardian ad litem, can be raised under subdivision 2, section 342, Burns' Ann. St. 1901, which provides for a demurrer when the plaintiff has not legal capacity to sue, and if the same does not appear on the face of the complaint or cross-complaint, then by plea in abatement. Section 346, Burns' Ann. St. 1894; section 343, Rev. St. 1881 ; section 343, Horner's Ann. St. 1897; Clough et al v. Thomas et al., 53 Ind. 24; Shirts v. Irons, 54 Ind. 13; Bray v. Black, 57 Ind. 417; Groves v. Ruby, 24 Ind. 418; Strong v. Downing, 34 Ind. 300. The statute cited and decisions thereunder upon the same question as the one before us are decisive. By failing to question the right of the guardian ad litem to file the cross. complaint in the court below, the right to raise such question upon appeal was waived.
Motion to dismiss overruled.
COMSTOCK, P. J. In this case Jacob Ziegler, Jr., an infant, was, upon motion, made a party defendant to a partition proceeding. James T. Walker was appointed his guardian ad litem. Said guardian filed a cross-complaint in three paragraphs. The case was tried upon the complaint and crosscomplaint, and a finding made and a judgment rendered against appellant. By his guardian, said Jacob moved for a new trial, and, upon the overruling of said motion, appealed to this court. Appellee moves to dismiss the appeal, for the reason that said cross-complaint ought to have been filed and the action prosecuted by next friend.
As an incident of their jurisdiction, courts have the inherent power to appoint guardians ad litem to defend the interests of minor defendants in actions pending before them. Said power is also conferred by section 2684, Burns' Ann. St. 1901, in the following terms: “All courts shall have power to ap point a guardian ad litem to defend the in
1 See 84 N. E. 19.
(39 Ind. A. 40)
tion not presented. In so far as his petition MILLER et al. v. GIVENS. (No. 6125.) asks to assign error on behalf of those, (Appellate Court of Indiana. Division No. 1. other than himself, who signed the remonOct. 31, 1906.)
strance, but who did not appear and answer, INTOXICATING LIQUORS-PROCEEDINGS TO PRO it is overruled. CURE LICENSE-APPEAL-PARTIES ENTITLED.
On removal to the circuit court of an application for a license to sell liquor, an answer
(39 Ind. A. 9) was filed by an individual setting up a remon
WILLIAMS v. DOUGHERTY. (No. 5,847.) strance by a majority of the legal voters to the granting of a license. The individual filing (Appellate Court of Indiana. Division No. 2. the petition was apparently considered as the
Oct. 30, 1906.) only adversary party, `and, on the sustaining
1. ADMINISTRATORS-APPOINTMENT—COURTSof a demurrer to the answer, he assigned error.
JURISDICTION. Held, that permission could not be given him to
Under Burns' Ann. St. 1901, § 2381, proassign error on behalf of others signing the
viding that letters of administration shall be remonstrance.
granted in the county where intestate was an
inhabitant at his death, where the court of a Appeal from Circuit Court, Jay County;
county other than that of which intestate was Jno. F. La Follette, Judge.
an inhabitant at death appointed an administraApplication by James Givens for a license tor of his estate, such appointment was propto sell liquor, Freeman Miller objecting and
erly annulled on the application of any person
interested or on suggestion of an amicus curiæ. filing an answer. From a judgment ordering
[Ed. Note.For cases in point, see vol. 22, a license, Miller appeals and moves for per
Cent. Dig. Executors and Administrators, $$ mission to prosecute appeal on behalf of 95, 203; vol. 2, Cent. Dig. Amicus Curiæ, $ 3.] others signing a remonstrance. Petition over 2. JUDGMENTS-COLLATERAL ATTACK-ADMINruled.
Where a court of a county other than that S. W. Haynes and J. F. Lewis, for appel in which intestate was an inhabitant at the lants.
time of his death, erroneously appointed an administrator of his estate, such appointment
was neither void nor subject to collateral atROBINSON, C. J. Appellee applied for a tack, and, while voidable on a direct attack, license to sell liquor in Dunkirk. In the furnished complete protection to the adminiscommissioners' court Freeman Miller ap
trator so long as it remained unrevoked. peared and moved to dismiss the application
[Ed. Note.-For cases in point, see vol. 22,
Cent. Dig. Executors and Administrators, $8 on the ground that the application and notice 178-180.7 failed to describe property situated on a public highway or street, and failed to describe Appeal from Circuit Court, Johnson Counproperty in Dunkirk. This motion was sus
ty; W. J. Buckingham, Judge. tained, and appellee appealed to the Jay
Petition by Mary J. Dougherty to vacate circuit court. In that court Miller filed an
the appointment of Henry Williams, as ad
ministrator of the estate of Adam S. Dougheranswer alleging facts which showed that, on June 2, 1905, three days before the regular
ty, deceased. From a judgment granting the June session of the commissioners, a remon
relief prayed, the administrator appeals. Af
firmed. strance in writing was filed, signed by him
Seo 77 N. E. 305. self and others, being a majority of the legal voters of the township, against the grant Wm. Featherngill, for appellant. C. B. ing of a liquor license to all applicants, and Clarke, W. C. Clarke and Deupree & Slack, that, on a hearing, the commissioners found for appellee. that a majority of the legal voters of the township had signed the remonstrance and
ROBY, J. Appellant was, on the 30th day entered an order on the finding. Appellee's of September, 1904, appointed, by the Johndemurrer to this answer was sustained. The
son circuit court, administrator of the estate cause was submitted to the court, and, upon
of Adam S. Dougherty, deceased. The ada hearing, license was ordered to be issued ministrator duly qualified, and entered upon to appellee.
the discharge of his duty. On February 28, Freeman Miller has filed in this court a 1905, appellee being the widow of said detranscript of the proceedings and an assign cedent, petitioned said court to set aside its ment of errors, and with the transcript, and order theretofore made in said matter, and attached thereto his petition asking that an to annul said letters, for the alleged reason order be granted permitting him to file an as that decedent was not, at his death, an insignment of errors without the use of the habitant of Johnson county. This issue was names of all the original remonstrators, and submitted for trial, and the fact found to be that the cause be docketed and heard in his that, at his death, and for several months name in his and their behalf. The answer prior thereto, said decedent was a resident of in the circuit court was filed by Freeman Marion county. The court thereupon renderMiller alone. He alone seems to have been ed judgment that said letters of administraconsidered the only adversary party. He tion be annulled, and said appointment set has assigned error in his own name. Wheth aside, and that appellant file a final report er he has perfected the appeal is a ques of his proceedings therein, within 30 days.