McClure v. Alexander

• Decision Date: 04 January 1894
• Citation: 24 S.W. 619
• Parties: McCLURE et al. v. ALEXANDER.
• Court: Kentucky Court of Appeals

24 S.W. 619

McCLURE et al. v. ALEXANDER.

Court of Appeals of Kentucky.

January 4, 1894

Appeal from circuit court, Grant county.

"Not to be officially reported."

Action by Fannie McClure and daughter against James B. Alexander for damages for the wanton and malicious taking of the life of W H. McClure. From a judgment dismissing the action, plaintiffs appeal. Reversed.

S.D Rouse, J. O'Hara, J. W. Bryan, and H. C. White, for appellants.

W. W Dickerson and James T. Willis, for appellee.

PRYOR J.

The appellee, James B. Alexander, in December, 1891, shot and killed W. H. McClure. The deceased left surviving him a widow and an infant daughter, and the two instituted the present action against Alexander to recover damages for the wanton and malicious taking of the life of the husband and father. The action is based on the provisions of section 6 of chapter 1 of the General Statutes, as follows: "The widow and minor child or children (or either or any of them) of a person killed by the careless, wanton, or malicious use of fire arms, or by any weapon *** not in self defense may have an action against the person, or persons who committed the killing, and all others aiding or promoting the killing," etc. On the trial the action was dismissed on the ground that the cause of action was alone in the personal representative of the decedent, by reason of section 241 of the state constitution. That section provides: "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 the 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 by law 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." It is contended by counsel for the appellants (the widow and child) that this provision of the constitution does not refer to or affect section 6 of chapter 1 of the General Statutes, but was intended to apply only to sections 1 and 3 of chapter 57. Section 1 of that chapter authorized an action to be brought by the personal representative for the loss of life of one not in the employ of a railroad company, caused by the negligence of its employes, etc., and the third section authorized an action by the widow, heir, or personal representative when the death of one was caused by the willful neglect of any person or corporation. It is manifest the framers of this section of the constitution, when adopting it, were considering alone the right of recovery when death was the result of negligence; and to harmonize the statutes on this subject, as well as to change the construction this court had placed upon the sections in chapter 57 relating to negligence, section 241 was inserted. The difficulty in construing this section of the constitution, and in ascertaining the meaning of its framers, arises from the use of the words "wrongful act." Whenever death results from an injury "inflicted by negligence or wrongful act" a recovery may be had. It is argued that the intentional killing by shooting one with a pistol is a wrongful act, and therefore, by this constitutional provision, the personal representative can alone recover; and it must be conceded, if such is the meaning the framers of the constitution attached to those words, the widow and child had no cause of action the killing occurring after the adoption of the constitution, and before any subsequent legislation was had by which the right of the widow and child to sue had been restored. There is no special...