Louisville & Nashville Railroad Company v. Sanders, &C.
| Decision Date | 05 November 1887 |
| Citation | 86 Ky. 259 |
| Parties | Louisville & Nashville Railroad Company v. Sanders, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HARDIN CIRCUIT COURT
WILLIAM LINDSAY FOR APPELLANT.
JAMES MONTGOMERY AND HARGIS & EASTIN FOR APPELLEES.
JUDGE HOLT DELIVERED THE OPINION OF THE COURT.
B. G. Sanders was killed in February, 1880, by being thrown from his wagon, when his horses were running away through fright at a locomotive of the appellant, which was standing near the public road crossing. His administrator qualified in March following. He left no widow. This action was brought in April, 1885, or more than five years after his death, by his infant children, to recover damages therefor, upon the ground that it was caused by the willful neglect of the appellant in leaving its locomotive too near the public road. It, among other defenses, relied upon the statute of limitation; but the court sustained a demurrer to this portion of the answer, and of this, among other things, the company now complains.
It was a rule of the common law, that no recovery could be had for an injury resulting in death. The right of action died with the person. This continued to be the law until 1846, when the English Parliament altered the rule by enacting what is known as "Lord Campbell's Act," by which the right to sue in such a case was given to the personal representative.
Nearly all the States of our Union have, in substance, copied the English law, and it is by virtue of a statute that the right to sue in such a case exists in this State. It reads thus:
"If the life of any person or persons 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 widow, heir or 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." (General Statutes, chapter 57, section 3.)
Section 3, article 3 of chapter 71, provides, that an action for an injury to the person "shall be commenced within one year next after the cause of action accrued, and not thereafter;" and section 2 of article 4 of the same chapter says:
"If a person entitled to bring any of the actions mentioned in the third article of this chapter, except for a penalty or forfeiture, was at the time the cause of action accrued an infant, married woman, or of unsound mind, the action may be brought within the like number of years after the removal of such disability, or death of the person, whichever happened first, that is allowed to a person having no such impediment to bring the same after the right accrued."
The question now presented is res nova, and by no means free from difficulty. As the statute giving a right of action is punitive, there can, in our opinion, be but one recovery. It is singularly silent as to who shall have precedence in suing. If the Legislature intended to give it first to the widow, and then to the children, and lastly to the personal representative, they have failed to say so, either expressly or inferentially. So also as to any distribution of the proceeds of a recovery.
The trouble now in hand grows out of the fact that, under the statute, either of three persons can sue upon a single cause of action. Upon the one hand, it can be urged that an infant is especially under the care of the court; that here a right of action is given him by the statute; and although the law bars the right in general to sue after the lapse of a year, yet his right to do so is expressly saved to him by the statute for that length of time after arriving at majority; and that it would be absurd to give him a right when he has no legal capacity to enforce it, and then bar it by limitation during the continuance of the disability.
These considerations are not without weight. They not only furnish ground for thought to the intellect, but appeal to the better feelings of our nature, which instinctively well out in behalf of helplessness. Upon the other hand, however, the law evidently looks to a speedy settlement of such claims. This is its policy. It has, therefore, prescribed the shortest period of limitation. If there be no one in esse who has the right to sue, then the saving in behalf...
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