Henderson's Adm'r v. Kentucky Cent. R. Co.

• Decision Date: 06 December 1887
• Parties: HENDERSON'S ADM'R v. KENTUCKY C. R. CO.
• Court: Kentucky Court of Appeals

5 S.W. 875

86 Ky. 389

HENDERSON'S ADM'R v. KENTUCKY C. R. CO.

Court of Appeals of Kentucky.

December 6, 1887

Appeal from circuit court, Kenton county.

Cleary & Hamilton, for appellant.

Hallam & Myers, for appellee.

LEWIS J.

This is an action brought under section 3, c. 57, Gen. St by the personal representative, to recover damages for the destruction of the life of Charles L. Henderson by the alleged willful neglect of the defendant or its agents, which section is as follows: "If the life of any person is lost or destroyed by the willful neglect of another person, * * * company, * * * corporation, * * * their agents or servants, then the widow, heir, or personal representative of the deceased shall have the right to sue such person, * * * company, * * * corporation, * * * and recover punitive damages for the loss or destruction of the life aforesaid." Of the various issues of law presented it is only necessary to consider that made by the second paragraph of the second amended answer, and reply thereto, to which a general demurrer was sustained. It is in that paragraph stated, in substance, that after this action was commenced and the original answer was filed, Louisa Henderson, widow of the deceased, instituted her action then pending in the same court against the defendant, in which she seeks to recover judgment for damages alleged to have resulted from the death of the deceased through the willful neglect of the defendant under the identical circumstances stated by the plaintiff in this action, and the pendency of that action is pleaded in bar of the further prosecution of this. For reply the plaintiff stated he was, after the written declination of Louisa Henderson to act, and upon her motion, duly appointed administrator of the estate of the deceased, for the purpose of instituting and maintaining this action for her benefit. He also denied her right to then prevent the prosecution of this action. As upon the failure of the plaintiff, after the demurrer was sustained, to further reply, the action was dismissed, the question before us is whether the facts stated in that paragraph of the answer are sufficient to constitute a defense to the action; and, if so, whether those stated in the reply constitute an avoidance of such defense.

In construing the section quoted, several questions bearing on this case arise which it is necessary to determine. According to the plain language used, either the widow, heir, or personal representative may sue; but it is equally clear that each of them cannot maintain a separate action for the same cause, for, as held in the case of Railroad Co. v. Sanders, ante, 563, decided at the present term, but one recovery can be had. If, then, there can be but one action maintained, and but one recovery had under the statute, for the destruction of the life of the same person, the inquiry arises (1) whether there exists any priority of right to sue between those named in the section; (2) whether, when the personal representative sues, or in any case, the amount recovered, or any part of it, goes into his hands as part of the assets of the decedent's estate; (3) whether the word "heir" is to be interpreted to mean "child," or given its usual and more extensive signification.

While looking alone to the language of the section, we would not be authorized to say any one of those named is entitled to precedence. It is not to be supposed the legislature intended the first right to sue, much less the property right to what may be recovered, should become a mere question of vigilance. When the person whose life is destroyed leaves no will, the widow may, before any other, become the administrator; for in making such an appointment the county court is required by section 3, art. 2, c. 39, Gen. St., to give to her the preference. But notwithstanding such appointment she may still sue under the section we are considering in her own right as widow, and not as the personal representative of her deceased husband. It being thus in her power, in virtue of a statute already existing, to take precedence of the personal representative, at least where the husband dies intestate, it is a reasonable inference, because necessary to make the statute consistent, that the legislature intended she should have it in every case arising under that section; and, if that be so, it seems to follow that no part of what she may recover in such case is to become assets of the estate of the decedent. For if that had been intended, the personal representative, who is the safest custodian of what belongs to the estate, because required to give bond for the...