Moore v. Citizens Bank of Pikeville

Citation420 S.W.2d 669
PartiesB. E. MOORE, Appellant, v. The CITIZENS BANK OF PIKEVILLE, Administrator of the Estate of Essie Carrie Moore, Deceased, Appellee.
Decision Date10 November 1967
CourtUnited States State Supreme Court (Kentucky)

Fred B. Redwine, J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellant.

Hobart Clay Johnson, Stratton & Johnson, Pikeville, for appellee.

MONTGOMERY, Judge.

B. E. Moore appeals from a judgment in favor of the Citizens Bank of Pikeville as the administrator of the estate of Essie Carrie Moore, deceased, in the sum of $20,000 for her wrongful death. The decedent was the wife of the appellant at her death. Appellant contends that he would be the sole beneficiary of any recovery and, therefore, such an action cannot be maintained against him. A related question is whether under KRS 381.280 it is necessary for a husband to be convicted of the murder of his wife in order to bar the action for wrongful death under KRS 411.130.

Essie Carrie Moore died of a wound, or wounds, inflicted under circumstances from which the jury was justified in believing that B. E. Moore had wrongfully caused her death. The sufficiency of the evidence is not in question. No testimony was offered by appellant. Insanity and self-defense had been pleaded as defenses.

Appellant argues that under KRS 411.130 he is the sole beneficiary of the estate of the decedent. They had no children. Appellee alleged that the deceased was survived by her father and mother. Appellant relies on Dishon's Adm'r v. Dishon's Adm'r, 187 Ky. 497, 219 S.W. 794, 13 A.L.R. 625, and Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610. He further contends that until he is convicted of a felony for such killing he has not forfeited his right to inherit from her and, therefore, it is pointless to permit any action against him when he would be entitled to the recovery.

At common law no action would lie to recover damages for the wrongful death of a person. Eden v. Lexington & Frankfort Railroad Company, 53 Ky. (14 B. Mon.) 204. Lord Campbell's Act, 9 and 10, Vict., Chapter 93, enacted in 1846, was the first to authorize such a recovery. One of the first of such statutes was adopted in this state in 1851. Revised Statutes, Chapter 31, Section 1. It provided for a recovery in favor of a widow and minor child of a person killed in a duel and against 'the surviving principal, the seconds, and all others aiding or promoting the duel.' In addition to reparation for the injury, provision was made for the giving of 'vindictive damages' 'for the suppression of the practice of dueling.' The statute has been broadened into its present form, KRS 411.130, and has constitutional basis. Kentucky Constitution Section 241.

The application of the the statutory and constitutional provision is fully discussed by Clarke, J., in the Dishon case. See also Jordan's Adm'r v. Cincinnati, N.O. & T.P. Ry. Co., 89 Ky. 40, 11 S.W. 1013. The same factual situation prevailed in Dishon as here. There is no material difference between KRS 411.130 and Carroll's Kentucky Statutes, Section 6, which was construed in Dishon. It was there held that under Kentucky Constitution Section 241 and its statutory counterpart an administrator of a childless wife wrongfully killed by her husband cannot recover damages from the husband for the wrongful death since there could be no real plaintiff, the husband being, in effect, both plaintiff and defendant. It was pointed out that under the statute the husband as the beneficiary was the real party in interest and that the wrongdoer was both the defendant and the real plaintiff.

In Robinson's Adm'r v. Robinson, 188 Ky. 49, 220 S.W. 1074, Clarke, J., writing again said:

'It was evidently the purpose of this section of the Constitution to provide for a recovery in every case where death resulted from negligence or wrongful act, and the only reason for such a provision in the Constitution is found in the fact that theretofore, under the common law as amended by statutes in this state, there were still some conditions under which a recovery could not be had for such a death.'

This was another action against a husband for wrongfully killing his wife.

In Bays v. Cox' Adm'r, 312 Ky. 827, 229 S.W.2d 737, the right of the wife's administrator to sue the husband for negligently killing her was upheld. Dishon and Robinson were cited with approval. In Bays and Robinson, it was held that the children of the deceased were entitled to one-half of a 'full recovery.' In Bays, the following language of Robinson was quoted with approval:

"Nor can the fact that the defendant is entitled to one-half of the recovery defeat the right of the plaintiff to maintain the action on behalf of his decedent's children, entitled to the other half of any sum that might be recovered. * * *"

See also Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610, and McCallum v. Harris, Ky., 379 S.W.2d 438.

The construction heretofore made of the statute and constitutional provision precludes any recovery for the ultimate benefit of the husband in an action by the personal representative of a childless wife against her husband for her wrongful death.

Appellant contends that KRS 381.280 does not work a forfeiture of the husband's right to a recovery since appellant has not been convicted of a felony. Appellee contends that the perpetrator by his act forfeits any right to inherit from the deceased wife, citing Wilson v. Bates, 313 Ky. 333, 231 S.W.2d 39, and Bates v. Wilson, 313 Ky. 572, 232 S.W.2d 837. Neither argument is pertinent here; nor is KRS 381.280. This statute creates a forfeiture of a right to inherit property by one who is convicted of a felony for killing the decedent and expressly provides that 'the property interest so forfeited descends to the decedent's other...

To continue reading

Request your trial
17 cases
  • Extendicare Homes, Inc. v. Whisman
    • United States
    • United States State Supreme Court — District of Kentucky
    • September 24, 2015
    ...In KRS 411.130(2), the General Assembly designated the persons to whom such claims belong. In Ping, we quoted Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 672 (Ky. 1967), holding that "the wrongful death action is not derivative ... [It] is distinct from any [cause] that the decease......
  • Ping v. Beverly Enters., Inc.
    • United States
    • United States State Supreme Court — District of Kentucky
    • August 23, 2012
    ...elements of damages in both a wrongful death action and a personal injury action.KRS 411.133 (1968). See also, Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 672 (Ky.1967) (noting that “the wrongful death action is not derivative.... [It] is distinct from any that the deceased may hav......
  • Richmond Health Facilities v. Nichols
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 15, 2016
    ...fails.To begin, Kentucky's highest court acknowledged the independence of the wrongful-death statute in 1967 at the latest. See Moore, 420 S.W.2d at 672 ("It has been pointed out that the wrongful death action is not derivative.... The cause is distinct from any that the deceased may have h......
  • Totten v. Parker
    • United States
    • United States State Supreme Court — District of Kentucky
    • December 15, 1967
    ...time of death of the person negligently or wrongfully killed. Sharp's Adm'r v. Sharp's Adm'r, Ky., 284 S.W.2d 673; Moore v. Citizens Bank of Pikeville, Ky., 420 S.W.2d 669. The Moore case and Ryburn v. First National Bank of Mayfield, Ky., 399 S.W.2d 313, are to the effect that anyone claim......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT