Jordan's Adm'r v. Cincinnati, N. O. & T. P. Ry. Co.

• Decision Date: 21 June 1889
• Citation: 11 S.W. 1013,89 Ky. 40
• Parties: JORDAN'S ADM'R v. CINCINNATI, N. O. & T. P. RY. Co.
• Court: Kentucky Court of Appeals

11 S.W. 1013

89 Ky. 40

JORDAN'S ADM'R v. CINCINNATI, N. O. & T. P. RY. Co.

Court of Appeals of Kentucky.

June 21, 1889

Appeal from circuit court, Kenton county; W. E. AUTHUR, Judge.

"To be officially reported.

Action by James Jordan's administrator against the Cincinnati New Orleans & Texas Pacific Railway Company. Plaintiff appeals from a judgment for defendant.

Cleary & Hamilton, for appellant.

Chas B. Simrall, for appellee.

LEWIS C.J.

This is an action by appellant administrator to recover for destruction of the life of James Jordan by alleged willful neglect of servants of appellee, deceased being at the time employed as engineer on one of its trains. In the answer it was pleaded in bar of recovery that deceased left no widow or child, to which as reply it was stated he left as heirs a father, mother, sister, and brother; but, a general demurrer to the answer having been overruled, while that to the reply was sustained, the action was dismissed. There is thus presented the same question that was made in the case of Henderson's Adm'r v. Railroad Co., 5 S.W Rep. 875, (decided in December, 1887,) where it was held the word "heir," as used in section 3, c. 57, Gen St., was intended to mean "child;" that the widow and children of a person whose life is destroyed by willful neglect have the prior right to sue for and exclusive right to what may be recovered in an action thereby authorized, and, consequently, the alternative right of action given to the personal representative can be exercised only for their use and benefit. But, as counsel in this and other pending cases requiring construction of that section have with much ability and earnestness in both oral and written arguments insisted the opinion in that case should be overruled, we will again consider the question, and, if convinced of error, correct it. Remedy by civil action for the death of a human being was not allowed by the common law, and now exists in this state in virtue alone of statutory enactment. The first innovation in that respect was a statute of England adopted in 1846, called "Lord Campbell's Act," which has been followed by statutes on the same subject in most if not all the states of the United States. It is therefore useful to refer to that statute and the construction given to it by English courts, as showing the reason for its adoption, and the principle upon which damages are assessed under it. The title of it is "An act for compensating the families of persons killed by accidents," and its provisions are in substance as follows: (1) An action is maintainable against a person causing death through wrongful act, neglect, or default, although the death was caused under such circumstances as amount to a felony. (2) The action is for the benefit of the wife, husband, parent, child, and, by construction, grandparent, step-parent, grandchild, stepchild, to be brought in the name of the personal representative, and the amount recovered to be divided among the parties as the jury may direct. (3) The plaintiff is to give to the defendant full particulars of persons for whose benefit the action is brought. In Blake v. Railroad Co., 18 Q. B. 93, 21 Law J. Q. B. 233, it was held that damages are to be assessed under that statute merely as compensation for the pecuniary and actual injury sustained, not as consolation for mental anguish of, or loss of companionship of a relative by, the survivors, nor for the suffering of the deceased. In Duckworth v. Johnson, 4 Hurl. & N. 653, 29 Law J. Exch. 25, it was held that, though negligence exists, an action cannot be maintained if there was no actual damage. In Bush v. Railroad Co., C. & J. 48, it was said that such damages must be given in reference solely to pecuniary loss, which, however, may be evidenced by proof of a reasonable expectation of pecuniary benefit, as of right or otherwise, from continuance of the life; but although given in respect of that expectation being disappointed, and of the probable pecuniary loss thereby occasioned, there must be something in the facts of the case to warrant such expectation. The same rule was approved in Franklin v. Railroad Co., 3 Hurl. & N. 211, and in Dalton v. Railroad Co., 8 Wkly. Rep. 574. But the pecuniary loss to be compensated for may consist, in case of a child, of loss of anticipated benefit of education and support, ( Pym v. Railroad Co., 2 Fost. & F. 619, 2 Best & S. 759,) and, we think, for like reason, in case of a widow, of loss of her husband's care, protection, and support. It will be observed the statute in express terms provides that actions can be maintained for the use of lineal kindred of the deceased only, except as to step-parents and step-children, or, in the language of the title, for compensation of "families," collateral relatives being in no case allowed any part of what may be recovered; and it seems to be well settled by English courts that there can be no recovery under it, even for the use of beneficiaries named therein, unless it appears from proof they have sustained actual pecuniary loss by the death.

The first one of such statutes was adopted in this state in 1851 as part of the Revised Statutes. See chapter 31, § 1, being as follows: "The widow and minor child of a person killed in a duel, or either of them, may have an action against the surviving principal, the seconds, and all others aiding or promoting the duel, or against any one or more of them, for reparation of the injury; and in which the jury may give vindictive damages for the suppression of the practice of dueling." March 10, 1854, "an act for the redress of injuries arising from the neglect or misconduct of railroad companies and others" was adopted, the first and third sections of which are as follows: "Section 1. If the life of any person not in the employment of a railroad company shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or negligence or carelessness of their servants or agents in this state, the personal representative of the person whose life is so lost may institute suit and recover damages in the same manner that the person himself might have done for any injury where death did not ensue." "Sec. 3. If the life of any person is lost or destroyed by the willful neglect of another person or persons, company or companies, corporation or corporations, their agents or servants, then the personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid." In 1866 "an act to prevent the careless or wanton or malicious use of deadly weapons" was passed, (see Myers' Supp. 681,) the first section providing "that the widow and minor child or children, or either or any of them, of a person killed by the careless or wanton or malicious use of fire-arms, or other deadly weapons, not in self-defense, may have an action against the person or persons who committed the killing, * * * or any one or more of them, for reparation of the injury and in such...