Louisville & N.R. Co. v. McElwain

Decision Date19 February 1896
Citation34 S.W. 236,98 Ky. 700
PartiesLOUISVILLE & N. R. CO. v. McELWAIN.
CourtKentucky Court of Appeals

Appeal from circuit court, Todd county.

"To be officially reported."

Action by T. W. McElwain against the Louisville & Nashville Railroad Company to recover damages for loss of his wife's society. From a judgment for plaintiff, defendant appeals. Reversed.

Ben T Perkins, Jr., for appellant.

Forgy &amp Petrie, for appellee.

PAYNTER J.

On the 8th day of October, 1892, a freight train on appellant's road struck Josephine E. McElwain while she was crossing the track at a public road crossing, inflicting injuries from which she died on the 23d day of December, 1892. T. W McElwain, the plaintiff in this case, qualified as executor of her will, instituted an action as such personal representative, and recovered a judgment against the defendant for the sum of $5,000. This action was instituted at the same time by the plaintiff, as the husband of the deceased, seeking to recover, in his individual capacity damages for the "loss of her society" from the date the injury was inflicted until her death. In the action as personal representative he recovered compensatory damages, under the instruction of the court, for physical and mental suffering, for expenses of treatment, and for the permanent impairment of her ability to earn money, etc. The sole question in this case is as to whether the recovery in the action as personal representative of the estate of the deceased is a bar to the husband's right to recover for a loss for which it is claimed the common law affords him redress. To determine this question, the common law must be considered in connection with the statutory remedy afforded for negligent acts resulting in death. By the principles of the common law, the right of action for an injury to the person abated upon the death of the party injured; the case falling within the familiar rule, "Actio personalis moritur cum persona." Therefore, if death resulted, whether instantaneously or not, from such injury, no action could be maintained by the personal representative of the injured party to recover damages suffered by the decedent. As early as 1606, in the king's bench, the case of Higgins v. Butcher, Yel. 89, arose, wherein the plaintiff sought to recover damages of the defendant for assaulting and beating his wife, of which she died. The action seemed to have been for damages to the wife, and not for the loss of service. It was held there could be no recovery, as, the injury having resulted in death, the cause of action therefor was merged in the felony. It might be added at this point that reasons other than merger have been suggested for the rule, to wit, the law of forfeiture, the maxim "Actio personalis moritur cum persona," and public policy. From the case of Higgins v. Butcher the question does not appear to have been raised in England until 1808, in Baker v. Bolton, 1 Camp. 493. It was an action against the proprietors of a stagecoach on which the plaintiff and his wife were traveling when it was overturned, inflicting injuries on himself, and also upon his wife, from which she died within a month. It was declared that "the plaintiff had wholly lost and been deprived of the comfort, fellowship, and assistance of his said wife, and had from thence hitherto suffered and undergone great grief, vexation, and anguish of mind." Lord Ellenborough said: "The jury could only take into consideration the injuries which plaintiff had himself sustained, and the loss of his wife's society, and the distress of mind he had suffered on her account from the time of the accident till the moment of her dissolution." The above is the opinion in full. Although the case was at nisi prius, it is the leading case on the subject. It was recognized as the law in England until the enactment of the statute familiarly known as "Lord Campbell's Act," in 1846. Until the passage of that act the law was recognized to be that "in a civil court the death of a human being could not be complained of as an injury." Formed after Lord Campbell's act, nearly, if not all, the states of the Union have enacted statutes making an action at law maintainable against a person who, by wrongful act, neglect, or default, may have caused the death of another. The courts of this country, with one or two exceptions, accepted Baker v. Bolton as authority until the enactment of the statutes to which we have just referred. Carey v. Railroad Co., 1 Cush. 475, follows Baker v. Bolton, and is a leading case upon the subject.

The question arose in this court, in 1853, in Eden v Railroad Co., 14 B. Mon. 204, before the enactment of the statute. That was an action by the husband against a railroad company for the alleged negligent killing of his wife. She was killed instantly. The court followed the principle enunciated in Baker v. Bolton, but erroneously assumed that it was decided in that case that when death resulted the civil remedy was merged in the public offense. The court said in the Eden Case: "The cause of action for injuries to the person dies with the person injured, and it follows as a necessary consequence that, the cause of action having itself abated, no separate action can be maintained for such damages as are exclusively consequential. But, for aggregated injuries to the person of the wife or child, the husband or parent has an independent and separate cause of action, for the loss of society of the wife, or the service of the child, as the case may be. This cause of action does not abate by the subsequent death of the wife or child, but the death of either affects the extent of the recovery, as by that event all further claim to the society of the one, or the services of the other, ceases and determines. And the rule still prevails, although the death that produces this effect results from the same injury which gives rise to the action. ***...

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