The proceedings leading to this appeal were initiated when plaintiff-appellee (Rayburn) filed an action against appellant (Childs) for the wrongful death of his son, Steven. This action was filed by Rayburn as administrator of Steven's estate, and alleged that Childs, as Steven's employer, permitted Steven to remain in an open field in spite of an approaching thunderstorm. Rayburn alleged that this act of negligence resulted in Steven being struck and killed by a bolt of lightning.
Childs' answer first requested dismissal of the action for failure to state a claim. However, the exact nature of the alleged failure is not set forth in the answer or other papers. Childs also denied several paragraphs of the complaint and requested Rayburn take nothing by his action.
At the trial of the cause, after Rayburn had rested, Childs filed a Motion for Judgment on the Evidence, which alleged, first, that Rayburn as administrator was not the proper party to maintain an action for the death of an unemancipated minor, and, second, that the evidence established that the sole proximate cause of Steven's death was an Act of God — lightning. The trial court denied the motion as to count two (2) at once, and, after further deliberation, sustained count one (1). Also at this time, Rayburn's motion to amend the complaint was granted, and Rayburn as guardian was substituted in place of Rayburn as administrator.
The evidence at trial revealed that on the day of Steven's death, Steven, another youth and Childs were in an open hay field, with Childs driving a tractor, and Steven and the other youth riding on a wood and metal wagon. Steven was engaged in stacking bales of hay on the wagon as they came from the baling machine which was also being pulled by the tractor. Just prior to the lightning strike, the wagon had been stopped on a small rise to adjust the load, and Steven was working on top of the wagon while the others were on the ground assisting him.
Childs did not testify, but the other young worker stated that when Steven was struck down, it was not raining, and that it was partly sunny before Steven's death. He also stated that he was unaware of thunder or gathering clouds, but that this may have been due to the noise of the baler, and his haste to keep up with his work.
Finally, Rayburn's expert witness testified, inter alia, that lightning takes the shortest path to the ground, and thus will usually strike the highest object in the area. The expert further stated that one of the best and easiest ways to protect against lightning was to take shelter — and this included moving out of open fields where the human form could be the highest object.
After all of the evidence, the jury returned a verdict for Rayburn, and awarded five thousand dollars ($5,000.00) damages.
Was Steven's death the result soley of an "Act of God."
Childs' first argument is that there was no evidence whatsoever that he was negligent or that his negligence, if any, was the proximate cause of Steven's death. Childs contends that no one present in the field established any acts or omissions amounting to negligence, and that to impose liability would hold him to an impossible standard which requires that he be able to predict the time and place of a lightning bolt. Thus, Childs asserts that the lightning was not foreseeable, and that his failure to foresee the same could not have been the proximate cause of Steven's death.
1 Am.Jur.2d Act of God, § 1 (1962), footnotes omitted.
Our own courts have defined an "Act of God" as follows:
Chicago and Erie Railway Co. v. Schaff Brothers Co. (1917), 74 Ind.App. 227, 230, 117 N.E. 869, 870.
Also, see the cases collected at Annot., 62 A.L.R.2d 796, §§ 1, 5 (1958).
There can be no question that lightning is an "Act of God" as defined above. Further, in the case at bar, it is clear that the actual and direct cause of Steven's death was a lightning bolt. We cannot agree, however, that such a conclusion dictates that we forego further review of this issue.
Over half a century ago this court, in Sarber v. City of Indianapolis (1920), 72 Ind.App. 594, 600, 126 N.E.2d 330, 331, stated:
This principle has been re-stated several times by the courts of this State: Inland Steel Co. v. King (1915), 184 Ind. 294, 110 N.E. 62; Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847; New York Cent. R. Co. v. Cavinder (1965), 141 Ind.App. 42, 211 N.E.2d 502; Krohn v. Shidler (1966), 140 Ind.App. 175, 221 N.E.2d 817.
This concept of concurring negligence or causation is applicable to those situations where one of the two proximate causes of injury is an Act of God and the other is personal negligence. In 1 Am.Jur.2d Act of God, § 2 (1962) the proposition is stated as follows:
(Our emphasis, footnotes omitted.)
The courts of this State have recognized those situations where an Act of God may concur with human negligence, and have held that the negligence may result in liability for any injury occurring as a consequence of the combined forces.
Watts v. Evansville, etc. R. Co. (1921), 191 Ind. 27, 53, 129 N.E. 315, 323.
Zollman v. Baltimore, etc., R. Co. (1918), 70 Ind.App. 395, 415, 121 N.E. 135, 142.
We believe the principles stated above are fully applicable to the case at bar. Thus, while it was uncontested that Steven was struck down by lightning, there remained the question of whether Childs was concurrently negligent in allowing or requiring Steven to remain in an open field, unprotected from the impending storm. If the evidence establishes such negligence, Childs, under the above-stated theory, could be considered the "immediate" proximate cause of Steven's death. Therefore, it was not error for the trial court to deny that part of Childs' motion for judgment on the evidence which was based on the proposition that an Act of God negates liability for concurring human negligence.
Did the court err in allowing Rayburn to amend his complaint to include the real party in interest.
Childs contends that the trial court committed reversible error when, after the close of plaintiff's evidence, it permitted Rayburn to amend his complaint so that Rayburn as guardian was substituted as the complaining party.
It is argued that the evidence does not establish that Steven was emancipated, and that, therefore, the only proper party to bring the present action was the father or parent. Thus, the argument continues that inasmuch as Childs raised the issue by the motion to dismiss in his answer, and no action was timely taken by Rayburn, the statute of limitations for Rayburn's action as a father had run when the amendment was allowed.
Appellant is correct that only the parent of an unemancipated child can maintain an action for his child's injury or death. IC 1971, 34-1-1-8 (Burns Code Ed.);
T.R. 12(B)(6) expressly states that objections or defenses may include:
Childs maintains that his motion to dismiss for failure to state a claim, which was filed with the answer in 1970, was based on the failure of Rayburn to name the real party in interest as plaintiff; that the complaint did not clearly establish that Steven was emancipated; and that the subsequent amendment in 1974 was not within a reasonable time after the initial objection, nor within the statute of limitations.
We believe that Childs' motion to dismiss was properly denied. Our decision on this point is supported by the following language from State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604, 606:
In the case at bar, the motion to dismiss did not specify the gounds therefor. In addition, Childs does not allege or prove that an affidavit or other evidence was submitted in order to clarify and explain the basis for the motion. Thus, just as in Rankin, we believe that the motion could have been granted only if it appeared to a certainty that relief could not have been granted under any set of facts. We find that the question of Steven's emancipation, and thus the question of the real party in interest, could not have been decided from the face of the complaint — i.e., the complaint did not clearly demonstrate that the administrator of Steven's estate was not the real party in interest. Therefore, the court properly denied the motion and permitted evidence on the subject. We must now decide whether the subsequent amendment to the pleadings was improper.
As noted above, the pleadings were eventually amended after Childs' motion for judgment on the evidence was granted in part. The trial court agreed with Childs that the action was being prosecuted by the wrong party, but along with granting the motion it also granted Rayburn leave to amend his pleadings. Over Childs' objection, the name of the real party in interest was substituted on the pleadings.
We conclude that the trial court committed no reversible error in allowing the amendment. T.R. 15(A) states, in part, that:
In addition, T.R. 17(A)(2) states, in pertinent part:
The objection by Childs at the midpoint of the trial was timely. See, 2 Harvey, Indiana Practice, Civil Code Study Commission Comments, p. 207 (1970). However, given the facts that Childs did not request a continuance to deal with the substitution or otherwise respond to the amendment as would be permitted under T.R. 15(A); that no parties were added or removed; that the amendment was prompt and without confusion or ambiguity; and that the evidence and proof involved was unchanged by the amendment, there was no prejudice in granting the motion to amend. Indeed, justice required it, since a dismissal would have probably resulted in another trial of the same issues.
Moreover, T.R. 17(A)(2), supra, disposes of Childs' argument that the statute of limitations would bar Rayburn's entry
Was Rayburn's instruction number one (1) confusing, prejudicial and inapplicable to the evidence.
It is Childs' third argument that the trial court erred in giving Rayburn's instruction number one (1), which reads as follows:
Childs contends the instruction improperly states the law, was inapplicable to the evidence, and confused the jury as to the proper standard to be used in such cases.
Rayburn responds by generally denying Childs' argument, and also asserts that his instruction number nine (9) corrected any confusion:
In addition to the above standard relating to damages, we must consider other well established guidelines with regard to the propriety of instruction number one (1) and all of the instructions together.
First, it is generally accepted that:
However, where the instructions are not actually contradictory, it has been often stated:
Guided by the above, we first conclude that the instructions are not contradictory, and we are not, therefore, restricted to considering only the allegedly bad instruction. Rather, we will consider all of the instructions to determine whether the jury was properly charged.
The first and third paragraphs of the challenged instruction closely follow the quotation above from Hahn v. Moore and are essentially correct. The second paragraph appears to be an attempt to rephrase and separate into distinct sentences the various elements of damages which are mentioned in the Hahn quotation following the omitted citations. Thus, for example, "loss of love and affection" as stated in the instruction is basically the same thing
Finally, we believe that instruction number nine (9) supra, although not really necessary in light of our construction of instruction number one (1), does serve to emphasize that the recovery may be had only for pecuniary loss. The instruction is not otherwise misleading or confusing, and we believe that by this and all of the other instructions the jury was adequately advised of the elements of damages to be considered.
Was the jury's verdict contrary to the evidence.
Childs next argues that the evidence "unquestionably" established that lightning was the sole cause of Steven's death. It is contended that there was no evidence that Childs was aware of the storm, and that his only connection with Steven's death was that he happened to be present when Steven was struck down.
In Part I, supra, we noted that one may be liable for the injury resulting from an Act of God where negligent acts or omissions contribute to the injury. Thus, where one fails to observe reasonable precautions for his or another's safety in the face of possible or probable natural calamities, liability may result. Sarber v. City of Indianapolis, supra; Watts v. Evansville, etc., R. Co., supra; Zollman v. Baltimore, etc., R. Co., supra.
We therefore conclude that it was for the jury to decide whether, from all the facts, it was unreasonable for Childs to require or request Steven to remain in the hay field.
The evidence nost favorable to Rayburn, as set forth above, reveals the presence of the storm, the nature of the field and equipment, and the location of the parties present when the lightning struck. Also, several witnesses made clear the customary safety precautions which should be taken when an electrical storm is approaching.
We agree with Childs that one witness testified that he did not observe the storm approaching. However, this merely points out a conflict in the evidence, and it is not our duty to resolve such conflicts. Lou Leventhal Auto Co., Inc. v. Munns (1975), Ind. App., 328 N.E.2d 734.
Given the above, we now hold that there is sufficient evidence to support the jury's conclusion that Childs, as Steven's employer, was negligent in not observing the storm; and in not moving or requesting that Steven move to a place of shelter, thereby exposing Steven to the lightning which eventually struck. Lou Leventhal Auto Co., Inc. v. Munns, supra. By this holding we also necessarily conclude that the decision was not contrary to law. Senst v. Bradley (1971), 150 Ind.App. 113, 275 N.E.2d 573.
Were the damages of $5,000 unsupported by the evidence.
Childs argues that the only evidence of damages was that of funeral expenses which totaled $1,216.17. Childs contends there was no evidence of the value of Steven's services or his future prospects in life and that the award is, therefore, unsupported by the evidence.
Evidence at trial established that Steven was in good health at the time of his death. He helped around the house with various chores, and also maintained periodic part time jobs outside the home. Further it was proven that Steven was sixteen (16) years of age at the time of his death, and that the family had experienced no unusual problems in rearing him.
Thus, contrary to Childs' contention, there was evidence bearing on the very elements of damages set forth in Hahn v. Moore, supra: loss of services; funeral expenses; and "acts of kindness and attention." What value is to be assigned to each element is solely the task of the jury. Certainly, the process is far from precise, yet the very nature of the action prohibits precision in allocating and awarding damages. Hahn v. Moore, supra; Allison v. Boles (1967), 141 Ind.App. 592, 230 N.E.2d 784.
Childs does not argue that the award is excessive, and we now hold that the award of $5,000.00 was supported by sufficient evidence. Allison v. Boles, supra; Gene B. Glick Co., Inc. v. Marion Constr. Corp. (1975), Ind. App., 331 N.E.2d 26, transfer denied.
Finding no reversible error, the judgment is hereby
ROBERTSON, C.J., and LYBROOK, J., concur.