The opinion
ON PETITION EOR A REHEARING.
Ray, J.
TJpon the filing of a petition for a rehearing in this case, we have for the first time- been favored with an argument by the appellee. After a careful reconsideration of the questions ruled, we adhere to the conclusions heretofore announced. We have thought it proper, however, in view of the full discussion with which the present application has been accompanied, to state somewhat more in de *518 tail, the reasons which have controlled us in the decision of one of the questions passed upon. The 27th and 784th sections of the code are directed to one common object, that is, to provide a statutory action for injuries or death resulting to one from the wrongful act or omission of another. The two sections must therefore be construed together, and, as far as possible, effect must he given to the provisions of each. A special regulation for a certain class of cases will take that class out of the general terms used in either section. With this qualification, the general provisions of the two sections must be regarded as applicable to cases coming within the language of either section. Williams v. Pritchard, 4 Term R. 2. The principle which controlled the decision of the court in Blain v. Bailey, 25 Ind. 165 , applies still more clearly to this case. Thus, the 27th section provides by whom an action for such wrongful act or omission shall bo instituted, but the provisions' of that section are in terms limited to a case where the result of such act or omission is the injury or deatli of a child. So far, then, it is exclusive of, the provisions of the 784th section^ for that section is general in its terms, and its provisions on the subject of the person who shall oring the action cannot, therefore, he applied to a class of cases where special legislation has been had in conflict with the more general language of the latter section. The provision that the personal representatives may maintain an action, if the deceased could have maintained one, if tlie injury had not caused death, has been heretofore ruled to be applicable to the cause of action, and not to the person bringing it. In other words, an action may he sustained where the deceased, had he lived, would not have been prevented from recovering by reason of his own want of care. The Jeffersonville R. R. Co. v. Swayne’s Adm’r, 26 Ind. 477 . There are, however, general provisions which apply to cases coming within the terms of either section. Thus, where the wrongful act or omission causes death, whether the deceased was a child or of full age, the action must be commenced *519 •within, two years, the recovery cannot exceed $5,000, and it must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.
So, also, although by the provisions of the 27th section, the action for the death of a child must be brought by the father, or in case of his death or desertion of his family, or imprisonment, by the mother, or by the guardian for his ward, it seems clear to us that where there was neither father, mother nor guardian, the case not being specially provided for, would then come within the provisions of the 784th section, and the administrator would be the proper person to sue.
The word child, as employed in the 27th section, 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 they cease ordinarily to be so-called is not defined by custom.” We think it is intended by the statute that the position occupied by the person should determine the question, rather than the age alone.
In the case under consideration, it appears by the complaint that the action should have been prosecuted by the father, as father, and not as administrator.
In overruling the petition for a rehearing, we regard it as-proper to state, that upon the original consideration of the ease a majority of the court were of opinion that the judgment should be reversed upon the additional ground that the finding was not sustained by the evidence. In deference to a doubt then expressed by one of the judges, the reversal was placed in the opinion upon the sole ground on which we stood together. A fuller consideration has satisfied us all that the child for whose death the action was brought *520 was unnecessarily exposed by his parents to the' danger which caused his death, and against which his judgment was too immature to afford him protection. Under such circumstances, to sustain the action, the evidence must have’ shown such recklessness on the part of the appellant as would imply a willingness to inflict the injuiy. This, the proof did xxot establish. .
B. Braekenridge, T. A. Hendricks, O. B. Herd and A. W. Hendricks, for appellant.
J. L. Worden, J. Morris axxd J. N. Fay, for appellee.
The petition is ovexrruled.