Hindmarsh v. Sulpho Saline Bath Company
| Decision Date | 28 March 1922 |
| Docket Number | 22040 |
| Citation | 187 N.W. 806,108 Neb. 168 |
| Parties | EDNA N. HINDMARSH, ADMINISTRATRIX, APPELLANT, v. SULPHO SALINE BATH COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed.
AFFIRMED.
Stewart Perry & Stewart, for appellant.
M. V Beghtol and J. L. McPheely, contra.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., DICKSON and STAUFFER, District Judges.
This was an action by the administratrix of the estate of Roy B. Hindmarsh, deceased, to recover damages for the benefit of the widow and next of kin, charging that the death of the deceased was caused by the wrongful act of the defendant.
The defendant operates a private hospital. Roy B. Hindmarsh in November, 1919, was a patient in the hospital and under the care of a nurse of the defendant. While in a delirious condition, he escaped and leaped from a window and sustained injuries. An action, other than the one now presented for review, was begun by him in his lifetime to recover damages, alleging negligence on the part of the defendant in failing to guard and prevent him from inflicting injuries upon himself. On August 14, 1920, pending that action, plaintiff died from the injuries inflicted. Edna N. Hindmarsh, the widow of deceased, was appointed administratrix and revived the action. That action was tried upon the theory that the death of decedent was caused by the wrongful act of the defendant, and that the plaintiff was entitled to recover in the one action all the damages which the deceased could have recovered, had he been totally and permanently disabled, and had he survived and lived out his entire expectancy. Under the court's instructions a recovery was allowed for the pain and suffering endured by the deceased; for his hospital and medical expenses; and for all loss of earnings for the full period of his expectancy, based upon his age and condition of health prior to the injury. Recovery was had in the sum of $ 4,000.
After recovery of this judgment, the plaintiff, administratrix, brought the present action, to recover for the benefit of herself as widow and for the benefit of her child, a daughter of the deceased, under the statute (Rev. St. 1913, sec. 1428, and sec. 1429, Laws 1919, ch. 92), which provides that, whenever the death of a person shall be caused by the wrongful act of another, when such act would, if death had not ensued, have entitled the injured party to maintain an action and recover damages, then, in every such case, the person, who would have been liable, shall be liable, notwithstanding the death of the injured person; and that every action for the recovery of such damages shall be brought by the personal representative, and shall be for the benefit of the widow and next of kin, and the amount recovered shall be distributed among the named beneficiaries in accordance with the law of descent and distribution of personal property.
The former recovery is set up as a bar to this action.
The former action, instituted by the deceased in his lifetime, was based upon the common-law right of recovery. It would have abated except for our statute (Rev. St. 1913, sec. 8023), providing that no action pending in any court shall abate by the death of either or both of the parties. Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510; Sheibley v. Nelson, 83 Neb. 501, 119 N.W. 1124; Levin v. Muser, 107 Neb. 230, 185 N.W. 431.
Had the former action finally terminated in a judgment prior to the death of Roy B. Hindmarsh, it seems clear that such judgment would have been a complete bar now, for, in order to recover in this action, under the statute (Rev. St. 1913, sec. 1428), it is necessary to show not only that the death resulted from a wrongful act, and that there are statutory beneficiaries for whom suit can be brought, but that, had the deceased lived, he himself would have been entitled to maintain an action. Had his cause of action been settled by him, or been reduced to judgment prior to his death, that would have eliminated one of the essential conditions to a recovery in this action, for his cause of action would have been extinguished and he would thereafter, had he lived, have had no right to sue. 17 C. J. 1250, sec. 102. Such a rule does not deny a full recovery. Had he prosecuted his suit and obtained a judgment prior to his death, he would have been entitled to an award of damages sufficient to cover all loss of every kind sustained. He could have recovered not only for pain and suffering and for expenses incurred, but also for loss of earnings, based upon his entire expectancy of life, as shown by his condition of health and age prior to the time of the injury. Though, by the injury, his life was to be shortened, or his death caused, still that would not have deprived him of the right to the maximum recovery, based on his full expectancy of life, as stated. Webb v. Omaha & S. I. R. Co., 101 Neb. 596, 164 N.W. 564; 17 C. J. 876, sec. 181, 906, sec. 196.
It is argued that, if such a judgment or settlement, prior to the death of the injured party, would be a bar, then a judgment in the action, brought by him in his lifetime and revived after his death, would also be a bar. That, however, does not follow. Before his death he had a right to recover the total loss of earnings, based upon his full expectancy of life; but when death occurred the actual duration and period of his life became definite and fixed and no longer open to question, and, having left a widow and next of kin, a new cause of action sprang up in their favor, entitling them to recover, for themselves exclusively, a portion of the total loss which has grown out of the extinguishment of the deceased's earning capacity. Obviously, a recovery of that same portion of the given loss cannot be awarded at the same time to statutory beneficiaries and to the estate as well, without resulting in a double payment by the defendant of a single loss. Whether or not in the event stated the administrator can, in the revived action, recover the whole amount, or whether he can recover only the loss which has been actually sustained by the deceased prior to his death, becomes a vital inquiry, since a judgment in the revived action, if it is continued as a distinct and separate action, could not become a bar except to the extent of the amount of recovery which could have been legally allowed in that action, and no further.
Under the law in this state, the legislature cannot authorize a double recovery. By a double recovery we mean a recovery which represents more than the total maximum loss which all parties have sustained. A single wrongful act, it is true, may cause an injury to more than one person, and every person sustaining injury through it is entitled to recover his loss. The quantum of loss actually sustained by all persons concerned, in a case of this kind, has a definite limit. The limit of that loss is the damage caused to the injured party by his pain and suffering; the loss through expenditure for medical and hospital services and other such expenses; and the loss of all earnings that he would otherwise have been able to make, had he not been injured, based upon an expectancy of life, as shown by his age and condition of health prior to his injuries.
The loss of earnings is limited to the earning capacity of the deceased, and where a party is allowed to recover a portion of that loss on the theory that such an amount would have been received from the earnings of the deceased had he lived obviously, to be consistent with that theory, no other person can be allowed a recovery on the ground that he had sustained the same injury and the same loss, for he could never have been the recipient of the same earnings. In this state exemplary damages are not recognized, nor can damages, in the nature of a penalty, be recovered. The defendant cannot be made to suffer to an extent greater than necessary to compensate for the loss which he has actually caused. The legislature may prescribe the methods by which that loss may be recovered, and may prescribe to whom the amounts recovered shall be distributed, but it cannot, by legislative act, require the defendant to pay a double loss; nor do we believe that the legislature intended to do so. The object of such statutes, both of the revival statute and of the statute giving a recovery for death caused by wrongful act, was to give and preserve to the parties damaged a complete remedy and opportunity to recover the loss sustained, a loss which, at the common law, they...
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