Louisville Ry. Co. v. Raymond's Adm'r

• Decision Date: 14 December 1909
• Parties: LOUISVILLE RY. CO. v. RAYMOND'S ADM'R.
• Court: Kentucky Court of Appeals

123 S.W. 281

LOUISVILLE RY. CO. v. RAYMOND'S ADM'R.

Court of Appeals of Kentucky.

December 14, 1909

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"To be officially reported."

Action by John Raymond's administrator against the Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Nunn C.J., dissenting.

Fairleigh Straus & Fairleigh and Howard B. Lee, for appellant.

Popham & Webster and Morton K. Yonts, for appellee.

HOBSON J.

John Raymond was struck by a street car of the Louisville Railway Company on October 16, 1906. On November 24, 1906, he made a compromise with it by which he accepted $20 in full settlement of all claims which he had against it as a result of the accident. He died on May 19, 1907, and on May 1, 1908 this action was brought against the railway company by his personal representative to recover damages for the loss of his life; it being alleged that his death was the result of the injury he received, and that this was by reason of the negligence of the railway company. The company pleaded in bar of the action, among other things, the written settlement which it had made with the decedent. The circuit court sustained the plaintiff's demurrer to this paragraph of the answer, and, the case having been tried, there was a verdict and judgment in favor of the plaintiff for $3,500. The railway company appeals.

The first question arising upon the appeal is as to the propriety of the action of the court in sustaining the demurrer to that part of the answer pleading the settlement made with the deceased. In Eden v. Lexington, etc., R. R. Co., 14 B. Mon. 204, it was held by this court that, though an action to recover for pain and suffering of a person injured might be revived by his personal representative, still, where death resulted immediately, no action could be maintained for the loss of the life of a human being. To remedy this ruling, which was made in the year 1853, at the next session of the Legislature in the year 1854 (Act 1853-54, p. 175, c. 964), an act was passed which provided that, if the life of any person not in the employment of a railroad company should be lost by reason of its negligence, the personal representative might maintain an action and recover damages "in the same manner that the person himself might have done for any injury where death did not ensue." By another section of the same act it was provided that, if the life of any person was lost by the willful neglect of another, then his personal representative should have the right to sue and recover damages for the loss of his life. See 2 Stanton's Rev. St. p. 510. Under this statute, the employés of a railway company were placed upon a different footing from other persons, and only railway companies were made liable to an action for death unless there was willful negligence. The statutes thus stood until the revision of 1873 (Gen. St. 1873, c. 57, § 3), when the Legislature modified the section as to willful neglect by providing that "the widow, heir or personal representative of the deceased" might bring an action. Gen. St. 1888, c. 57, pp. 774, 777, § 3. Under this amendment, it was held by the court that, where the decedent left no widow or children, there could be no recovery for his death under the willful neglect section. Henderson v. K. C. R. R. Co., 86 Ky. 389, 5 S.W. 875, 9 Ky. Law Rep. 625. So it was that railroad companies were not liable for the death of their employés unless there was willful neglect, and the deceased left widow or children. Other corporations or persons were not liable at all except in case of willful neglect, and only then when the deceased left widow or children. Thus matters stood when the constitutional convention met in 1891. To put all persons and corporations on the same footing, and to allow a recovery in all cases whether the deceased left widow or children or not, they adopted the following: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person." Const. § 241. At the first meeting of the General Assembly after the adoption of the Constitution the following provision was made by statute: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same, and when the act is willful or the negligence is gross, punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased. The amount recovered, less funeral expenses and the cost of administration, and such costs about the recovery, including attorney's fees, as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased in the following order, viz.: (1) If the deceased leaves a widow or husband, and no children or their descendants, then the whole to such widow or husband. (2) If the deceased leaves either a widow and children or a husband and children, then one-half to such widow or husband and the other one-half to the children of the deceased. (3) If the deceased leaves a child or children, but no widow or husband, the whole to such child or children. If the deceased leaves no widow, husband or child, then such recovery shall pass to the mother and father of deceased, one moiety each, if both be living; if the mother be dead and the father be living, the whole thereof shall pass to the father; and if the father be dead and the mother be living, the whole thereof shall go to the mother; and if both father and mother be dead, then the whole of the recovery shall become a part of the personal estate of the deceased; and after the payment of his debts, the remainder, if any, shall pass to his kindred more remote than those above named, as is directed by the general law on descent and distribution." Ky. St. § 6 (Russell's St. § 11).

The decision of this court in the case of Eden v. Lexington etc., R. R. Co., followed a like decision in the courts of England. To meet that decision the English Parliament passed what is known as "Lord Campbell's act" in 1846, which was more or less followed in our act of 1854, and by like acts in other states both before and since. The purpose of Lord Campbell's act and the various acts in this country following it was to do away with the common-law principle that a civil action could not be maintained to recover damages for the death of a human being. It was steadily maintained by this court under the acts in force previous to the adoption of the present Constitution that, if a person was injured and did not die immediately, an action might be maintained after his death by his personal representative upon the cause of action which accrued to him at the time of his injury, and in point of fact many actions were maintained by personal representatives in this way where there could be no recovery for damages because the decedent left no widow or children or where for other reasons a recovery could not be had under the statute for his death. But, while it was steadily maintained that the personal representative might sue upon the common-law cause of action which had accrued to the decedent if he survived the injury for a time, it was steadily maintained that he could not sue upon this cause of action, and at the same time sue under the statute to recover for the death of his decedent. Both before the adoption of the Constitution and since, it has been held that in such a case the personal representative must elect whether he will sue upon the commonlaw cause of action which accrued to the decedent or upon the cause of action accruing to him under the statute. See Hansford v. Payne, 11 Bush, 385; Conner v. Paul, 12 Bush, 144; Donahue v. Drexler, 82 Ky. 157, 56 Am. Rep. 886; Hackett v. Louisville, etc., R. R. Co., 95 Ky. 236, 24 S.W. 871, 15 Ky. Law Rep. 612; L. & N. R. R. Co. v. McElwain, 98 Ky. 700, 34 S.W. 236, 18 Ky. Law Rep. 379, 34 L. R. A. 788, 56 Am. St. Rep. 385; O. & N. R. R. Co. v. Barclay, 102 Ky. 16, 43 S.W. 177, 19 Ky. Law Rep. 997. In Lewis v. Taylor Coal Company, 112 Ky. 851, 66 S.W. 1045, 23 Ky. Law Rep. 2218, 57 L. R. A. 447, the court, reviewing its previous decisions on the subject, said: "At common law the right of action for the injury to the person abated on the death of the party injured. Under Ky. St. § 10 (section 2), the cause of action for personal injury, causing physical and mental suffering, does not abate on the death of the injured person, except actions for assault, slander, and criminal conversation, and so much of the action for criminal conversation as is intended to recover for personal injury. These questions are reviewed by this court in Railroad Company v. McElwain, 98 Ky. 700, 34 S.W. 236, 18 Ky. Law Rep. 379, 34 L. R. A. 788, 56 Am. St. Rep. 385. So, under the principles of the common law, if appellee had, through its agent, inflicted the injury which resulted in physical pain and mental suffering and death, neither cause of action would have survived. This court has held that the cause of action for...