Dishon's Adm'r v. Dishon's Adm'r

Decision Date19 March 1920
Citation219 S.W. 794,187 Ky. 497
PartiesDISHON'S ADM'R v. DISHON'S ADM'R.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Garrard County.

Action by Lillie Conn Dishon's administrator against T. E Dishon's administrator. Judgment for defendant, and plaintiff appeals. Affirmed.

Lewis L. Walker, of Lancaster, E. P. Morrow, of Somerset, and J. I Hamilton, of Lancaster, for appellant.

J. E Robinson, of Lancaster, and Kendrick Alcorn, of Stanford, for appellee.

CLARKE J.

On August 4, 1918, T. E. Dishon shot and killed his wife, Lillie Conn Dishon, and two days later he died. This action was instituted by the administrator of the wife against the administrator of the husband, seeking to recover of his estate damages for her wrongful death. The trial court sustained defendant's demurrer to the petition and dismissed it, from which judgment the plaintiff appeals.

The only question presented by this appeal is whether or not the administrator of the wife may maintain an action for damages against the estate of the husband who wrongfully caused her death. This is the first time the question has ever been presented to this court.

Counsel for the plaintiff, admitting that no such right existed at the common law, claim it has been conferred by section 241 of our state Constitution adopted in 1891 and section 6 of the Kentucky Statutes enacted pursuant thereto in 1893. They do not claim the right under section 2128 of the Kentucky Statutes, which is a part of the "Married Woman's Act" adopted March 15, 1914, and which, like similar acts enacted in many other states, confers upon the wife the same right to sue in her own name to enforce her property rights and redress personal wrongs as that enjoyed by her husband with reference to his property and personal rights but which very clearly was not intended to and does not confer upon either the right to sue the other for tort. Noel v. Fitzpatrick, 124 Ky. 787, 100 S.W. 321, 30 Ky. Law Rep. 1011; Eberhardt, etc., v. Wahl's Adm'r, 124 Ky. 223, 98 S.W. 994, 30 Ky. Law Rep. 412; Hazen, etc., v. Colossal Cavern Co., 76 S.W. 116, 25 Ky. Law Rep. 502; Coleman v. Coleman, 142 Ky. 36, 133 S.W. 1003; Niles v. Niles, 143 Ky. 94, 136 S.W. 127; 21 Cyc. 1519; Cooley on Torts (3d Ed.) vol. 1, p. 474; Kinkead's Com. on Torts, vol. 2, p. 868; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L.R.A. (N. S.) 1153, 21 Ann.Cas. 921; Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A. (N. S.) 191, 116 Am.St.Rep. 387; Peters v. Peters, 42 Iowa 182; Freethy v. Freethy, 42 Barb. (N. Y.) 641; Longendyke v. Longendyke, 44 Barb. (N. Y.) 367; Bandfield v. Bandfield, 117 Mich. 80, 75 N.W. 287, 40 L.R.A. 757, 72 Am.St.Rep. 550; Libby v. Berry, 74 Me. 286, 43 Am.Rep. 589; Nickerson v. Nickerson, 65 Tex. 281; Chestnut v. Chestnut, 77 Ill. 350; Schultz v. Christopher, 65 Wash. 496, 118 P. 629, 38 L.R.A. (N. S.) 780; Rogers v. Rogers, 265 Mo. 200, 177 S.W. 384; Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A. (N. S.) 699; Keister's Adm'r v. Keister, 123 Va. 157, 96 S.E. 315, 1 A.L.R. 439.

Yet counsel for the defendant assume that this section is the source, if any exists, of plaintiff's right to maintain the action, and prove quite conclusively by the almost unanimous authority of many courts of last resort and text-Writers, which we have cited above, that this section of our statutes does not confer the right of one spouse to sue the other for tort. Having proven so much, they conclude that if the wife could not have sued the husband for an assault and battery her personal representative cannot possibly sue him or his personal representative for damages for her death resulting from an assault and battery committed by him.

This argument, as convincing as it is that the right does not exist under the common law as modified by this section alone, is wholly unavailing if, as is claimed, the right has been conferred by another section of the statutes enacted pursuant to a constitutional provision. Section 6 of the statutes and section 241 of the Constitution, in so far as they may be considered as creating causes of action that had never existed theretofore under our law, are in almost identical terms, so we need only quote the constitutional provision, which is as follows:

"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person."

It will be noticed that there are in reality three subdivisions of this section, the first providing that damages may be recovered in every case "whenever the death of a person shall result from an injury inflicted by negligence or wrongful act." The second and third subdivisions of the section prescribe, respectively, by whom and for whose benefit the suit shall be instituted, but only until the Legislature shall regulate these two matters which are of prime importance in construing the section, since it must be construed as a whole.

The language of the first portion of the section is general and certainly broad enough to indicate that in every imaginable case, even the peculiar one we have here, damages may be recovered from the wrongdoer for a wrongful or negligent death. We may assume, then, for the present at least, that this portion of the section, if standing alone, would authorize an action against a husband for the death of his wife, but we must look to the second and third portions of the section to find out who can bring the action and for whose benefit.

The second portion of the section, as does the statute, names the personal representative as the proper person to bring the action, but not for his own...

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