Simons v. Kidd
| Decision Date | 23 August 1949 |
| Docket Number | 9068 |
| Citation | 38 N.W.2d 883,73 S.D. 41 |
| Parties | BLAINE SIMONS, Administrator of the Estate of Beverly Sanna Knight, Respondent, v. MARVIN KIDD, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County, SD
#9068—Reversed
Davenport, Evans & Hurwitz, Sioux Falls, SD
Attorneys for Appellant.
Blaine Simons, Gene McDonnell, Sioux Falls, SD
Attorneys for Respondent.
Opinion Filed Aug 23, 1949; Rehearing Denied Oct 18, 1949
The complaint in this action alleges that on the night of October 23, 1948 Beverly Sanna Knight was walking south on Highway 77 when she was struck by an automobile; that the accident was caused by the neglect of Marvin Kidd, defendant, driver of the car that struck her; that as a result Mrs. Knight was severely injured and died three days later. Plaintiff has been appointed administrator of her estate and brings this action to recover damages in the sum of $20,000 for the injury, pain and suffering of decedent. Defendant answered the complaint alleging among other things that the complaint fails to state a claim upon which relief can be granted, and asked that the complaint be dismissed on the merits. Plaintiff’s motion to strike this defense was granted, and defendant’s appeal was allowed.
This is an action brought by the administrator to recover damages for the injury, pain and suffering of decedent during her lifetime. It does not involve the right of the administrator to recover damages for death caused by wrongful act, neglect or default, which is the subject of another action between the same parties.
At common law a cause of action for injury to the person does not survive the death of either the person who caused the injury or the person injured. Ulvig v. McKennan Hospital, 56 SD 509, 229 NW 383.
SDC 37.2201 reads as follows:
SDC 37.2203, so far as material here, reads as follows:
SDC 37.2201 quoted above created liability for death caused by wrongful act, neglect, or default in an action against the wrongdoer or in case of his death against the administrator or executor of the wrongdoer. SDC 37.2203 created a right of recovery in “every such action” for the exclusive benefit of the spouse, children or next of kin of the deceased injured person in an action by his executor or administrator. These statutes did not provide for the survival of a cause of action for death by wrongful act, neglect, or default, either as to the wrongdoer or as to the person injured, “the measure of damage being, not the damage suffered by the injured decedent as a result of the injury to him, but the pecuniary damage resulting from his death to the specified beneficiaries of the new remedial action.” Ulvig v. McKennan Hospital, supra [56 SD 509, 229 NW 387]; Peterson v. Kemper, 70 SD 427, 18 NW2d 294.
Ch. 172, SL 1947, amended SDC 37.2201 by inserting after the word “death” in line 1, the phrase “or injury”, and by adding a paragraph declaring “actions for wrongful death or personal injury shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death or injury of the injured person.”
Ch. 173, S. L. 1947, amended SDC 37.2203 by striking out “the pecuniary” and inserting the word “all” in its place.
These two sections of the code, as amended, are complementary to each other. SDC 37.2201 deals with liability only. By its terms an action for wrongful death or injury may be brought against the executor or administrator of a deceased wrongdoer, and the damages recovered become a valid claim against his estate. This section also provides that liability for wrongful death or personal injury shall survive the death of the wrongdoer. It does not provide that the right of recovery shall survive the death of the injured person. Where the injured person has died his right of action for injury is lost unless it can be held that such right survives under SDC 37.2203, as amended. That section deals with the right of recovery and the measure of damages. It relates to “every such action”, that is, every action in which “death or injury of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued.” SDC 37.2201, as amended. All such actions “shall be brought in the name of the executor or regular or special administrator of the deceased person; ... the jury may give such damages, not exceeding in any case ten thousand dollars as they may think proportionate to all injury resulting from such death to the persons respectively for whose benefit such action shall be brought.”
A cause of action growing out of personal injury, and one growing out of death by negligence constitute two different subjects. The one is a common law right which accrues during the lifetime of the injured person, and in his favor, for physical and mental suffering, loss of time and wages, etc. The other is a statutory right which does not accrue until after the death of the injured person, and is in favor of beneficiaries designated by statute. Recovery is limited to “all injury” suffered by the statutory beneficiaries as the result of such death. Rowe v. Richards, 32 SD 66, 142 NW 664, LRA 1915E, 1069. The statutes which give such right of recovery on behalf of the next of kin “create a new cause of action separate and distinct from, and not a continuation of, the common-law cause of action given a party for his own physical injury.” Rowe v. Richards, 35 SD 201, 151 NW 1001, 1003, LRA 1915E, 1075, Ann. Cas. 1918A, 294. The above interpretation of these statutes has been followed in all later decisions of this court. Stratton v. Sioux Falls Traction System, 49 SD 113, 206 NW 466; Ulvig v. McKennan Hospital, 56 SD 509, 229 NW 383; Petersen v. Kemper, 70 SD 427, 18 NW2d 294. Pain and suffering of the deceased...
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