Mason v. Gerin Corp., 54240

• Decision Date: 16 July 1982
• Docket Number: No. 54240,54240
• Citation: 231 Kan. 718,647 P.2d 1340
• Parties: Diana L. MASON, individually, and as Administrator of the Estate of Otis W. Mason, Deceased, Plaintiff, v. GERIN CORPORATION, a corporation; Ashland Chemical Company, a division of Ashland Oil, Inc., a corporation; and Texaco, Inc., a corporation, Defendants.
• Court: Kansas Supreme Court

Page 1340

647 P.2d 1340

231 Kan. 718

Diana L. MASON, individually, and as Administrator of the Estate of Otis W. Mason, Deceased, Plaintiff, v. GERIN CORPORATION, a corporation; Ashland Chemical Company a division of Ashland Oil, Inc., a corporation and Texaco, Inc., a corporation, Defendants.

No. 54240.

Supreme Court of Kansas.

July 16, 1982.

Syllabus by the Court

In a wrongful death action the provisions of the wrongful death statute, K.S.A. 60-1901, are construed to require the existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right of action for wrongful death; and fulfillment of that condition becomes impossible by reason of the expiration, prior to his death, of the period of limitations governing the claim of the person injured.

On certification of a question of law from the United States District Court for the District of Kansas; FRANK G. THEIS, Judge Opinion filed July 16, 1982. The running of the statute of limitation governing the claim of a person injured precludes the heirs from bringing a subsequent wrongful death action upon the death of the injured person.

Jack M. Short, of Texas, Inc. of Tulsa, Okl. and Ken M. Peterson of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, argued the cause and was on the brief for defendants.

Richard D. Cordry of Michaud, Cordry and Michaud, Chartered, Wichita, argued the cause and was on the brief for plaintiff.

SCHROEDER, Chief Justice:

This case presents a question of Kansas law certified to this court by the United States District Court for the District of Kansas under authority of the Uniform Certification of Questions of Law Act, K.S.A.1981 Supp. 60-3201 et seq., requesting an interpretation of the Kansas Wrongful Death Act.

The statement of facts set out in the memorandum and order from the district court provide the following relevant facts. On September 15 or 16, 1977, Otis W. Mason was diagnosed by his treating physician as having acute myelocytic leukemia, potentially related to exposure to the chemical benzene in his work environment. On October 16, 1977, Otis Mason signed a statement to this effect. During this time Otis and Diana Mason discussed consulting a lawyer about Otis Mason's leukemia, but it is not clear from the record whether they did. Otis Mason died on December 10, 1979, and is survived by his widow Diana Mason (plaintiff).

The defendant Texaco was and is engaged in the manufacturing, distribution, marketing and sale of benzene. The defendant Gerin Corporation purchased benzene manufactured by Texaco from intermediary chemical distributors. Gerin sold "Gerin Lube Oil Test Kits" to the United States Coast Guard and periodically supplied it with small quantities of "Gerin Solvent," which consisted of either benzene or toluene. The plaintiff contends Otis Mason contracted leukemia as a result of exposure to benzene contained in the Test Kit while instructing students in the proper use of the kit while in the Coast Guard in 1974 and 1975.

The question before us is limited to the defendant Texaco. While it is not clear from the record before us when the plaintiff's original action was initiated, Texaco was not named as a defendant until plaintiff filed her second amended petition on July 8, 1980. The plaintiff sought damages for Otis Mason's pain and suffering and her loss of consortium, comfort, services and society, in addition to a wrongful death claim.

Texaco moved for summary judgment on two grounds. The ground relevant to the issue here presented is that the plaintiff's actions for personal injuries and wrongful death as to Texaco were barred by the statute of limitations. The district court properly dismissed Otis Mason's cause of action against Texaco for personal injuries, holding it was clearly barred under K.S.A. 60-513. Otis Mason's action for personal injuries accrued when the injury became ascertainable to him, which was, at the latest, in October 1977. The two years expired in October 1979, and since Texaco was not brought in as a defendant until July 1980, Otis Mason's action for personal injuries was time barred.

Whether plaintiff's wrongful death claim is time barred raises a more difficult question. The Kansas wrongful death statute, K.S.A. 60-1901, provides:

"If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased." (Emphasis added.)

In Graham v. Updegraph, 144 Kan. 45, 58 P.2d 475 (1936), the court interpreted the above emphasized clause in the then existing wrongful death statute, R.S. 1923, 60-3203, to mean that where the injured party could not have brought an action had he lived because the statute of limitations had run against his claim, an action by his personal representative under the wrongful death statute was also barred. The Federal District Court was hesitant to apply the Graham rule, expressing "great doubts" as to the precedential value of Graham. It stated the following reasons: (1) the wrongful death statute and the statute of limitations have been changed since Graham ; (2) the current statute of limitations and case law construing same would indicate that the cause of action accrued at Mr. Mason's death; and (3) it is probable that Graham was wrongly decided and the Kansas Supreme Court would repudiate Graham.

The district court certified the following question to this court, which it deemed to be determinative of the issue before it:

"Does the cause of action accrue and the statute of limitations for a wrongful death action begin to run at the date of death, so that a wrongful death action brought within two years of the date of death is not time barred, even though the action was brought more than two years after the deceased's action for personal injury accrued?"

Essentially the issue before us is one of statutory interpretation. Our question for determination is: What construction should be put on the words "if the former might have maintained the action had he or she lived"?

This question has been answered in different ways elsewhere, see Annot., 167 A.L.R. 894; Annot., 97 A.L.R.2d 1151. This is the first time the question has been raised in Kansas since Graham.

At common law no cause of action existed for wrongful death. In 1846 in England a wrongful death act was enacted, commonly known as Lord Campbell's Act, S. 9 and 10 Vict., ch. 93, after which many state wrongful death statutes were patterned. See Prosser, The Law of Torts, § 127 (1971); Speiser, Recovery For Wrongful Death 2d, §§ 1:8, 1:9 (1975); Goodyear, Administratrix v. Railway Co., 114 Kan. 557, 220 P. 282 (1923). This act provided that whenever a person's death was caused by a wrongful act, neglect or default of another, an action could be brought on behalf of the heirs if the decedent would have been entitled to maintain an action and recover damages for the injuries if death had not ensued. This act was held to have created a new cause of action which allowed the heirs to recover the damages they sustained upon the injured party's death which were different from those damages recoverable by the decedent for his injuries. Goodyear, Administratrix v. Railway Co., 114 Kan. at 562, 220 P. 282; Speiser, Recovery For Wrongful Death 2d, §§ 1:8, 1:9 (1975).

The Kansas wrongful death statute has been construed similarly to Lord Campbell's Act. In Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363 (1976), while discussing the Kansas automobile injury reparations act, this court recognized that a cause of action for wrongful death is a separate and distinct type of action from a survival action authorized by K.S.A. 60-1801 et seq. A survival action allows the personal representative to recover damages accrued by the injured party between the date of injury and death for the benefit of the decedent's estate. On the other hand, the wrongful death action authorized by 60-1901 et seq., is for the exclusive benefit of the heirs, and allows them to recover damages accruing after death for such things as loss of support, companionship and mental anguish. See also Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, 494 P.2d 1184 (1972).

The statute of limitations considered in Graham was contained in the body of the wrongful death statute in existence at the time, R.S. 1923, 60-3203, providing "(t)he action must be commenced within two years." This was deleted from the wrongful death statute and relocated in Article 5 of the Kansas Code of Civil Procedure governing limitation of actions. K.S.A. 60-510 provides that civil actions provided for in the article can only be commenced within the period prescribed after the cause of action has accrued. K.S.A. 60-513(a)(5) provides an action for wrongful death shall be brought within two years.

This change in the statute does not appear to be anything more than a transfer of the statute of limitations provision from the wrongful death statute to the article in the Code of Civil Procedure which generally governs the statute of limitations for all actions. See Gard's Kansas C.Civ.Proc.2d Annot. § 60-1901 (1979). The change was made by the 1963 Legislature when our new Code of Civil Procedure was revised and enacted in its present form. We do not attach any significance to the deletion of the statute of limitations provision from the wrongful death statute. It appears to have been made for convenience and organizational purposes rather than to effect a change in the application of the wrongful death statute.

In Yeager v. National Cooperative Refinery Ass'n, 205 Kan. 504, 470 P.2d 797 (1970), it was held that a cause of action accrues at the point in time when the...