The Atchison v. Ryan

• Decision Date: 06 April 1901
• Docket Number: 11,796
• Citation: 64 P. 603,62 Kan. 682
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. T. L. RYAN, as Administrator of the Estate of M. J. McGlade, deceased

64 P. 603

62 Kan. 682

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. T. L. RYAN, as Administrator of the Estate of M. J. McGlade, deceased

No. 11,796

Supreme Court of Kansas

April 6, 1901

Decided January, 1901.

Error from Chase district court; W. A. RANDOLPH, judge.

Judgment reversed.

A. A Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

Madden Bros., for defendant in error.

OPINION

DOSTER, C. J.

This was an action brought by T. L. Ryan, as administrator of the estate of M. J. McGlade, deceased, in behalf of the latter's next of kin, against the Atchison, Topeka &amp Santa Fe Railway Company, to recover damages for negligently causing the death of said McGlade. A verdict and judgment were rendered for plaintiff, to reverse which defendant has prosecuted error to this court. The action was brought upon the statute (Gen. Stat. 1897, ch. 95, § 418; Gen. Stat 1899, § 4686), which reads as follows:

"When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $ 10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

The petition named as next of kin Arthur McGlade, a brother, Elizabeth Burns, a sister, and John Langlois, a nephew, the son of a deceased sister. It is objected that the nephew is not within the class denominated in the statute "next of kin," and hence that the action cannot be prosecuted in his behalf. Our attention has not been called to any decisions defining the phrase "next of kin," as used in such a statute as the one above quoted, and therefore we are compelled to try to ascertain its meaning without the aid of precedents. Our judgment is that it comprehends all those who inherit from the deceased under the statute of descents and distributions. It is true that the amount recovered in an action upon the statute forms no part of the estate of the deceased. It is not property which descends from ancestor to heir. (Perry, Adm'r, v. St. J. & W. Rld. Co., 29 Kan. 420.) However, as declared by the statute in question, the amount recovered "inures to the benefit of the next of kin"; and "is to be distributed in the same manner as personal property of the deceased." Ordinarily, a statutory direction as to the "manner" of doing a thing is not understood to be a direction as to matters of substantive right, but only as to the forms of procedure to be observed; but in this instance we are constrained to think that the former and not the latter is meant.

The statute is dispositive of property interests and not regulative of modes of practice. There is nothing about the nature of the act to be performed -- that is, about the distribution of the fund recovered -- to which rules of procedure can be applied. An amount of money is to be paid by a judgment debtor and shared between several judgment creditors. There is nothing for the one to do but pay it, nor for the others to do but divide it. There is absolutely nothing in any of the acts to be done of which manner of legal procedure can be predicated. The statute, therefore, is not a direction to distribute according to certain forms, but it is a direction to distribute to certain persons. Those persons are the ones to whom the personal property of the deceased is to be distributed. In the lack of wife, children, or parents, such persons are the surviving brothers and sisters, and the children of deceased brothers and sisters. (Gen. Stat. 1897, ch. 109, §§ 18-20; Gen. Stat. 1899, § 2458-2460.) Therefore, the phrase "next of kin," as used in the statute in question, means those kin to whom the personal estate of the decedent descends.

This view accords with such decisions as have a bearing on the subject. In Pinkham v. Blair, 57 N.H. 226, 242, a devise to the testator's "next of kin" was held to include not merely his surviving brothers and sisters, but the children of his deceased brothers and sisters, as well. This because the statute of descents of the state vested such children with the inheritable rights of their deceased parents. A statute authorized a certain class of actions to be brought against the "next of kin" of a deceased person. It was held that the term included those to whom, under the statute of distributions, the personal estate of the deceased would pass. (Merchants' Ins. Co. of New York v. Hinman, 34 Barb. 410.) The court below, therefore, did not err in holding the nephew, John Langlois, to be of the next of kin of the deceased.

M. J. McGlade, the deceased, was a railway mail clerk and had been such for ten or eleven years. He was thirty-eight or thirty-nine years old at the time of his death, and at that time was receiving a salary of $ 1150 per annum. His health and habits were good, and he had accumulated as property a house and lot in town worth $ 800 or $ 900, $ 500 in money, and had a life insurance policy for $ 6000. He was unmarried. His parents were dead, and his next of kin were the brother, sister and nephew before mentioned, all of whom lived in Canada. The nephew was a boy nine or ten years old. The brother and sister were adults, and the latter was a married woman. The deceased had visited his relatives in Canada three times, the first two of which were in the lifetime of his parents, but all these visits were several years before the occurrence of his death. While interest in and affection for the brother, sister, and nephew, upon the part of the deceased, may be assumed from the fact of his relationship to them, there was no evidence of any manifestation of it. All his earnings had been expended upon himself. There was no evidence that he ever contributed in any sum or in any way to the support, education or comfort of his brother, sister, or nephew.

The jury returned a verdict against the defendant for $ 5000, and also made the following findings:

"Ques. Did the deceased ever contribute anything to the support of his brother, Arthur McGlade? Ans. No evidence.

"Q. Did the deceased ever contribute anything to the support of his sister, Mrs. Elizabeth Burns? A. No evidence.

"Q. Did the deceased ever contribute anything to the support of his nephew, John Langlois? A. No evidence.

"Q. Where did the deceased live at the time of his death, and how long did he reside at such place? A. Headquarters at Kansas City, but no evidence of length of time.

"Q. What are the respective ages of the brother, sister and nephew of the deceased? A. The first two, no evidence; age of nephew, nine or ten years.

"Q. What are the financial conditions of said brother and sister? A. No evidence."

In the light of the evidence above summarized and the findings of the jury above quoted, it is not possible to sustain the judgment rendered in this case. It is not, however, a case of excessive damages given under the influence of passion and prejudice, and, therefore, to be set aside under the statute but it is a failure to make proof of substantial damages, and therefore to be set aside, on the general principles of law. An action of the character of this one is purely compensatory. It is brought to recover for pecuniary loss consequent upon death. There being no legal liability resting upon M. J. McGlade to contribute to the support of his kinspeople, they can maintain the action only upon proof that he had contributed to them in some way, or had recognized his family obligation to do so and had manifested a disposition to discharge it. All the authorities are to this effect. ( A. T. & S. F. Rld. Co. v. Brown, Adm'r, 26...