HAHN v. Moore , 127 Ind. App. 149 ( 1956 )

On Petition for Rehearing

Kelley, J.

Appellants assert in their petition for rehearing that we erred in holding that Burns’ Stat., §§2-404 and 2-217 “are not in pari materia and need not be construed together”, and that we thereby contravened the “later” precedent of the Supreme Court. We will refer to the cases cited by appellants in a subsequent portion of this opinion.

As we understand the contention of appellants, as expressed in their original brief and in the petition for a rehearing, it is not that they urge simply a construction together of the said sections of the statutes in order to arrive at the legislative intent and purpose in the enactment of either, but rather that, under the guise of the doctrine of pari materia, we transplant a limitation provided for in §2-404 and engraft it upon said §2-217.

In our original opinion we held that the parent’s act (§2-217, Burns’ 1946 Replacement) was clear and unambiguous and that no reason appeared for the application of the doctrine of pari materia. Appellants say that we, by such holding, contravened a ruling precedent of the Supreme Court and cite as establishing such precedent the cases of Berry, Adm’r. v. The Louisville, Evansville and St. Louis Railroad Co. (1891), 128 Ind. 484, 28 N. E. 182, and Thornburg v. The American Strawboard Company (1895), 141 Ind. 443, 444, 40 N. E. 1062. As a case from our own court they cite Elliott v. Brazil Block Coal Co. (1900), 25 Ind. App. 592, 58 N. E. 736.

We think it meets with general approval to say that a decision is a precedent for the doctrine necessarily involved in it and not necessarily a precedent for the pronouncements of the judge or judges who wrote it. To determine whether a case is a precedent for a stated proposition and therefore to be adhered to under the rule of stare decisis, it is proper to ascertain the exact point or points before the court for adjudication and seek, in the opinion, the doctrine announced or followed by the court, without which the point could not be correctly decided. All else in the opinion is merely the reasoning or explanation of the court and attains the dignity of neither doctrine nor precedent.

The precise question before the court in the Berry case, referred to above, was whether an allegation in a complaint that an infant decedent “for two months before and at the time of his death . . . was not in the service of his parents, or of either of them” was sufficient to show an emancipation of the infant so as to establish the right of the infant’s father to maintain the action in his capacity as administrator “of his deceased minor son.” The court held such allegation to be insufficient. That was the doctrine of that case and the case stands as a precedent for that rule. We did not contravene that precedent by our holding. No such question was before us. In the course of its opinion the court made the statement that it had been decided by the cases referred to by the court that the parent’s right section and the wrongful death section of the statute “are to be construed together”. Such statement was not only unnecessary to the court’s decision of the particular question before it, but the cases relied upon by the court do not support the broad statement of the court. We dealt with all such cases in our original opinion. For instance, the court cited and relied upon the case of The Louisville, New Albany and Chicago Railway Company v. Goodykoontz, Guardian (1888), 119 Ind. 111, 21 N. E. 472, wherein the court said that said two sections were entirely disconnected, and each is to be “construed independently of the other”. Our research discloses that the Goodykoontz case has been consistently followed and approved down to the latest available citations. The same is found true of the holding in Mayhew v. Burns (1885), 103 Ind. 328, 2 N. E. 793, which was also relied upon by the court in the said Berry case.

The question before the court in the Thornburg case, cited above, relied upon as a precedent by appellants, as stated above, was whether a man who married the mother of a bastard child and took it into his home as a member of the family, could recover for the death of the child, when caused by the wrongful act of another. The court held that the action could not be maintained by the plaintiff since he was not the father of the deceased child. Such was the doctrine of that case and the rule for which it exists as a precedent. Incidental to its opinion, the court adopted the same words used in the said Berry case and cited said Berry case. In neither the Berry case nor the Thornburg case was any reference to the wrongful death act or joint construction necessary for the court’s decision.

We do not regard either said Berry or Thornburg case as a precedent for the rule urged by appellants. If appellants’ position be sound, then we, in writing our original opinion, would have been in the discomforting position of being confronted by two contra lines of authority established by the Supreme Court, necessitating our contravention of ruling precedent, regardless of the conclusion reached by us. Our investigation has raised no authority even suggesting that the two cases relied upon by appellants had any influence upon the holdings in the said Goodykoontz and Mayhew cases. It would seem, then, that the rule established in the said Mayhew and Goodykoontz cases remains the law of this state.

A cursory reading of the Elliott v. Brazil Block Coal Co. case, supra, relied upon by appellants, leads to the early conviction that it lacks the stability of a ruling precedent for the position taken by appellants. No petition to transfer said case was presented to the Supreme Court and, therefore, if it be construed as holding the doctrine declared for by appellants, then it contravened the holding of the Supreme Court in the said Goodykoontz and Mayhew cases. Insofar as the Elliott case holds as a general rule that statutes in pari materia must be construed together, it merely followed a long line of authorities so holding. We, of course, are bound by such general rule where the circumstances are such as render appropriate its application.

Appellants also say in their petition for rehearing that we erred in holding that the trial court did not err in refusing to give the two instructions mentioned in the original petition and that we erred in not holding the verdict to be excessive. We presently conceive no reason for altering our original opinion.

Petition for rehearing denied.

Pfaff, P. J., not participating.

Note. — Reported in 133 N. E. 2d 900.

Rehearing denied 134 N. E. 2d 705.

Transfer denied, Achor, C. J., dissents.