Kilkenny v. Kenney

• Decision Date: 16 February 1961
• Docket Number: No. 6753,6753
• Citation: 1961 NMSC 19,361 P.2d 149,68 N.M. 266
• Parties: James M. KILKENNY, Individually; James M. Kilkenny, as Next Friend to Stephen Kilkenny, Mary Louise Kilkenny, Josephine Kilkenny and Marguerite Kilkenny, Minors; and James M. Kilkenny, as Administrator of the Estate of Erma Kilkenny, Deceased, Plaintiffs-Appellants, v. Dr. Bergere KENNEY, and Sisters of Charity of Cincinnati, Ohio, a Corporation, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 149

361 P.2d 149

68 N.M. 266

James M. KILKENNY, Individually; James M. Kilkenny, as Next

Friend to Stephen Kilkenny, Mary Louise Kilkenny, Josephine

Kilkenny and Marguerite Kilkenny, Minors; and James M.

Kilkenny, as Administrator of the Estate of Erma Kilkenny, Deceased, Plaintiffs-Appellants, v. Dr. Bergere KENNEY, and Sisters of Charity of Cincinnati, Ohio, a Corporation, Defendants-Appellees.

No. 6753.

Supreme Court of New Mexico.

Feb. 16, 1961.

Rehearing Denied May 5, 1961.

Lyle E. Teutsch, Jr., Thomas A. Donnelly, Santa Fe, for appellants.

Seth, Montgomery, Federici & Andrews, Gilbert, White & Gilbert, Santa Fe, for Dr. Bergere Kenney.

Richard C. Civerolo, Albuquerque, for Sisters of Charity of Cincinnati.

COMPTON, Chief Justice.

Appellant, individually, as next friend of his minor children, and as the administrator of the estate of Erma Kilkenny, deceased, brought this action for damages allegedly resulting from the negligence of the appellees.

The appellant's complaint, filed November 12, 1959, alleges that on December 11, 1955, Erma Kilkenny, upon the recommendation of appellee Kenney, was admitted to St. Vincent Hospital in Santa Fe, which was owned and operated by appellee, Sisters of Charity, for the specific purpose of having her diet adjusted as a diabetic; that her ailment and the purpose for which she was admitted were fully known to appellees; that on the 12th day of December, 1955, while Erma Kilkenny was in the exclusive care of appellees, she suffered a diabetic coma, or insulin shock, due to the negligence of appellees, resulting in total incompetence and from which she died December 2, 1958.

Appellant's complaint was for three separate causes of action, although the same were commingled. These were: (1) Action by appellant as husband for hospital and medical expenses and loss of consortium between the date of the injury and date of death; (2) action by the husband as administrator, for decedent's damages between the injury and her death; and (3) action by husband, for himself and as next friend of the children, for damages under the Wrongful Death Act (Sec. 22-20-1 et seq., N.M.S.A., 1953 Comp.).

Appellees moved for a dismissal of the complaint on the ground that the complaint failed to state a cause of action, and further on the ground the action was barred by the statute of limitations. From an order dismissing the cause, appellant appeals.

The questions for our determination are: (a) Whether the Wrongful Death Act applies to the husband's cause of action for hospital and medical expenses and loss of consortium incurred preceding death; and (b) whether the decedent's administrator can recover damages between the date of injury and the date of death, and if so, must the suit be brought within three years of the date of the injury, or within one year from the date of the death, in view of the incompetency of the decedent. The sections read:

'22-20-1. Death by wrongful act or neglect--Liability in damages.--Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.'

'22-20-2. Limitation of actions.--Every action instituted by virtue of the provisions of this and the preceding section must be brought within three (3) years after the cause of action shall have accrued.'

'22-20-3. Personal representative to bring action--Damages--Distribution of proceeds of judgment.--Every such action as mentioned in section 1821 (22-20-1) shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of the deceased child, but shall be distributed as follows: * * *.'

It is well settled in this jurisdiction that under the Act an action may be brought only by the personal representative or representatives of the deceased, and that damages recovered for such wrongful death are to be distributed to the surviving parties entitled to the judgment. And it is clear that the action must be brought within three years of the accrual date, in this instance December 11, 1955. Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274; State ex rel. De Moss v. District Court of the Sixth Judicial District, 55 N.M. 135, 227 P.2d 937; Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540. To the same effect see Tilly v. Flippin, 10 Cir., 237 F.2d 364. Also see 16 Am.Jur. (Death) Sec. 197; Annotation 173 A.L.R. 750; and 34 Am.Jur. (Torts) Sec. 160. Thus, it is clear, as admitted by appellant, that the cause of action on behalf of the children is barred.

With reference to the appellant's personal cause of action as the husband, there is no question but that under the common law the husband would have been entitled to recover, whether death ensued or not. See Annotation 66 A.L.R. 1189. The statute quoted states that the damages shall take into consideration 'the pecuniary injury or injuries resulting from such death * * *.' The damages sought by appellant as to this cause of action have nothing whatsoever to do with the death, and we do not believe that the Wrongful Death Act applies to common law remedies that heretofore existed and were not repealed by the Act. See Restatement of the Law, vol. 3, Torts, Sec. 693:

'One who by reason of his...