Sharp's Adm'r v. Sharp's Adm'r

• Decision Date: 02 December 1955
• Citation: 284 S.W.2d 673
• Parties: Lera Baker SHARP'S ADM'R (Cary Baker), Appellant, v. Ryman SHARP'S ADM'R (Paul Sharp), Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 673

284 S.W.2d 673

Lera Baker SHARP'S ADM'R (Cary Baker), Appellant, v. Ryman SHARP'S ADM'R (Paul Sharp), Appellee.

Court of Appeals of Kentucky.

Dec. 2, 1955.

John S. Cary, Burkesville, for appellant.

Harlan E. Judd, Burkesville, for appellee.

CLAY, Commissioner.

The case calls for the construction of our Wrongful Death Statute, KRS 411.130, with respect to the distribution of the damages recovered. The question is whether the recovery goes to the estate of the decedent's husband, who survived her for a brief time, or to her mother.

Mrs. Lera Baker Sharp was killed in an automobile accident on December 5, 1953. She was survived by her husband and mother but no child. The husband died twenty-six days later from injuries sustained in the same accident. He was survived by children of a former marriage. Thereafter, Mrs. Sharp's administrator settled a claim for damages for her death without suit having been filed, and collected $3,000. The issue as to the proper disposition of the net sum recovered was submitted upon an agreed statement pursuant to KRS 418.020. The circuit court awarded the sum to the husband's estate and the wife's administrator appeals.

Our statute, KRS 411.130, insofar as it is here applicable, provides that an action for death of a person resulting from an injury inflicted by the negligent or wrongful act of another shall be prosecuted by the administrator of the person killed. Paragraph (2) of the statute reads: 'The amount recovered * * * shall be for the benefit of and go to the kindred of the deceased in the following order: (a) If the deceased leaves a widow or husband, and no children or their descendants, then the whole to the widow or husband. * * * (d) If the deceased leaves no widow, husband or child, then the recovery shall pass to the mother and father of the deceased * * * and if the father is dead and the mother living, the whole thereof shall go to the mother.' Paragraph (e) provides that if the deceased leaves none of the named beneficiaries 'then the whole shall become a part of the personal estate of the deceased' and pass to his kindred more remote 'according to the law of descent and distribution.'

In other jurisdictions there is a wide diversity of opinion with respect to who has the right to maintain an action for wrongful death and who is entitled to the amount recovered. Almost any type of decision is available. See Sedgwick on Damages, Secs. 570, 573; 25 C.J.S., Death, § 40; 16 Am.Jur., Death, Secs. 52, 55, 87, 114, 115, 251, 256. Annotations, Effect of death of a beneficiary upon right of action under death statute, 13 A.L.R. 225, 230; 34 A.L.R. 162; 59 A.L.R. 760; 43 A.L.R.2d 1291; Division among beneficiaries of amount awarded by jury or received in settlement upon account of wrongful death, 14 A.L.R. 516, 532; 112 A.L.R. 30, 39; 171 A.L.R. 204, 215. It may be said that the lack of harmony in the foreign cases is due in a large degree to the difference of language in the various statutes.

The proper construction of our statute has been heretofore decided. In Thomas' Adm'r v. Maysville Gas Co., 112 Ky. 569, 66 S.W. 398, the trial court had adjudged that the cause of action for wrongful death of a son for the benefit of a father abated upon the death of the father while the action was pending. In reversing the judgment, this Court said, 66 S.W. at page 399:

'James Thomas being in esse when his son died, his right attached, and, having attached, descended at his death, with his other personal property. His right is against the administrator, who, under the statute, is authorized to prosecute the suit just as upon other choses in action or claims. The fact that the defendant to the action succeeded in defeating a recovery until one or more of the beneficiaries died had no effect upon its liability to the administrator. The law regards that as done which ought to have been done; and, if it is finally held liable, those persons who would have gotten the fund if the claim had been paid off when the right attached are not affected by the fact that they did not survive the final result of the litigation.'

The foregoing case was cited with approval and the principles therein announced were followed in Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38, 183 S.W. 237. It was there held that the administrator of the...