Ellis v. Sill

• Decision Date: 28 August 1962
• Docket Number: No. 42850,42850
• Citation: 190 Kan. 300,374 P.2d 213
• Parties: Harold ELLIS, As Next of Kin of Harold Warren Ellis, Deceased, Appellee, v. Claude Ellison SILL, Henry Martell, Richard Teichgraeber, and Henry Martell and Richard Teichgraeber d/b/a Eureka Drilling Company, Appellants.
• Court: Kansas Supreme Court

Page 213

374 P.2d 213

190 Kan. 300

Harold ELLIS, As Next of Kin of Harold Warren Ellis Deceased, Appellee, v. Claude Ellison SILL, Henry Martell, Richard Teichgraeber and Henry Martell and Richard Teichgraeber d/b/a Eureka Drilling Company, Appellants.

No. 42850.

Supreme Court of Kansas.

Aug. 28, 1962.

Syllabus by the Court

1. Under the provisions of G.S.1961 Supp. 60-3203, an action for wrongful death may be maintained by the personal representative of the decedent, and the damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, to be distributed in the same manner as personal property of the decedent.

2. Under the provisions of G.S.1949, 60-3204, where no personal representative of decedent is or has been appointed, the action for wrongful death may be brought by the widow, or, if there is no widow, it may be brought by the next of kin of decedent.

3. As the terms are used in 60-3203 and 60-3204, above 'widow' means 'surviving spouse,' and includes a 'widower.' 'Next of kin' means those who inherit from a decedent under the law of descents and distributions.

4. The wrongful-death statutes, above, create but one statutory cause of action, and a negligent wrongdoer can be compelled to answer but once for a single wrongful death--irrespective by whom the action is brought.

Gerald Sawatzky, Wichita, argued the cause, and George Forbes, Eureka, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Donald L. Cordes and Robert L. Howard, Wichita, were with him on the brief for appellants.

O. J. Connell, Jr., and Gale Moss, El Dorado, argued the cause and were on the brief for appellee.

A 14-year-old boy died as the result of alleged negligence on the part of defendants. No personal representative was appointed. His next of kin were his father and mother. The father, as sole plaintiff, brought an action for wrongful death, alleging that it was brought for 'the exclusive benefit of the next of kin' of decedent. Recovery was sought in the maximum amount of damages allowed by statute. Defendants appealed from an order overruling their demurrer to the petition. Held:

(A) The father, as a next of kin, was authorized to bring the action for 'the exclusive benefit of the next of kin,' and the mother, as the other next of kin, was not an indispensable party to the action.

(B) Under the circumstances mentioned it was proper to seek recovery in the maximum amount of damages allowed by statute.

(C) The demurrer to the petition was properly overruled.

PRICE, Justice.

This is an action for wrongful death. Defendants have appealed from an order overruling their demurrer to the petition.

The primary question presented is this:

Under our wrongful-death statutes--where no personal representative of the decedent has been appointed--and where the decedent leaves no surviving spouse--are all of the next of kin of decedent indispensable parties to the action?

G.S.1961 Supp. 60-3203, in material part reads:

'When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two (2) years. In any such action, the court or jury may award such damages as may seem fair and just under all the facts and circumstances, but the damages cannot exceed twenty-five thousand dollars ($25,000) and must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. * * *' (Our emphasis.)

G.S.1949, 60-3204, reads:

'That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.' (Our emphasis.)

We are not concerned with allegations of negligence on the part of defendants. Material portions of the petition read:

'Comes now the plaintiff and for his cause of action against * * * sets out, states and alleges:

'1. That he is a resident of Lyon County, Kansas, and that his correct post office address is Emporia, Kansas.

'2. That he was the father of Harold Warren Ellis, deceased, and that on August 25, 1959, and at all times pertinent hereto, said Harold Warren Ellis was of the age of 14 years; that no personal representative has been appointed for the Estate of said Harold Warren Ellis, deceased, and that this action is brought by plaintiff as next of kin of said decedent for the exclusive benefit of the next of kin of said deceased.

'3. That on said date, plaintiff and his said son were residents of Madison, Greenwood County, Kansas.

* * *

* * *

'16. That the deceased, Harold Warren Ellis, left surviving him as his next of kin and only heirs at law, this plaintiff and the mother of said deceased, whose name, to the best knowledge and belief of plaintiff, is Florence Ellis and whose address is unknown to the plaintiff.

* * *

* * *

'18. That this plaintiff and the next of kin of said Harold Warren Ellis have suffered damage by reason of the untimely death of said deceased in the following particulars, to-wit:

* * *

* * *

'(e) Such other pecuniary loss, not previously mentioned herein, as plaintiff and deceased's next of kin might reasonably expect to receive from said decedent in their declining years.

All in the total amount of twenty-five thousand dollars ($25,000.00).

'Wherefore, plaintiff prays that he have judgment, for the exclusive benefit of the next of kin of Harold Warren Ellis, deceased, against defendants, * * * in the sum of Twenty-five Thousand Dollars ($25,000.00), for the wrongful death of Harold Warren Ellis and for his costs herein incurred.' (Our emphasis.)

We thus have a situation where a 14-year-old boy died as the result of the alleged negligence of defendants. No personal representative of his estate was appointed. At his age he of course left no surviving spouse. His 'next of kin' were his father and mother, and her whereabouts are unknown. The father, as sole plaintiff, brought the action to recover the maximum amount allowed by statute--for the 'exclusive benefit of the next of kin' of the boy--that is--for the benefit of plaintiff father and the boy's mother.

Defendants filed their demurrer as follows:

'Come Now the defendants and demur to the petition of the plaintiff wherein the petition seeks to recover in excess of 12,500.00 dollars for the reason that said petition shows on its face that the cause of action is not maintained by all of the next of kin of the decedent and by law the plaintiff, if he can recover anything, is limited to 12,500.00 dollars.'

The demurrer was overruled--and defendants have appealed. They state the questions to be:

'1. Where no administrator has been appointed, and there is no surviving spouse of deceased, are all next of kin indispensable parties in a wrongful death action under G.S.1949, 60-3204?

'2. In the event all next of kin are not indispensable parties, can plaintiff sue for more than his one-half portion of the maximum claim for wrongful death?'

With respect to the first question--defendants' contentions are summarized:

(1) The word 'widow' as used in 60-3204, above, means 'surviving spouse', and includes a 'widower' (Shuffelberger v. Hopkins, 177 Kan. 513, 519, 280 P.2d 933). The phrase 'next of kin' of a decedent means those who inherit from him under the law of descents and distributions (Railway Co. v. Ryan, 62 Kan. 682, 64 P. 603). The next of kin of a decedent leaving no spouse, children, or issue--are his parents (G.S.1949, 59-507).

(2) Under 60-3203, above, an action for wrongful death may be brought only by the personal representative of the decedent. 60-3204 was subsequently enacted to preserve the remedy in case there is no personal representative (or in case of nonresidence of the decedent), and by its terms- --absent a personal representative--the action may be brought by the widow or--where there is no widow--by the next of kin of the decedent. In any event, under 60-3203, the damages 'must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin,' to be distributed in the same manner as personal property of the decedent.

(3) There are, therefore, three classes of parties who are authorized to bring a wrongful-death action: (A) The personal representative of the decedent who brings it for the exclusive benefit of the surviving spouse and children, if any, or for the exclusive benefit of the next of kin. In such a situation he is the statutory representative of the mentioned beneficiaries--the surviving spouse and children, if any, or the next of kin. (B) The surviving spouse--in the event there is no personal representative--and in that situation such spouse is the statutory representative of the children, if any (White v. Atchison, T. & S. F. Ry. Co., 125 Kan. 537, 539, 265 P. 73, 59 A.L.R. 749). (C) The next of kin--where there is neither a personal representative nor a surviving spouse.

(4) When the action is brought by the personal representative (class A), or by the surviving spouse (class B), the statutory beneficiaries so represented need not be made parties. When, however, the action is brought by the next of kin (class C) there is no statutory representative provided for by which one person can represent and bind the interest of others in that...