Theodore Martin v. The Missouri Pacific Railway Company

• Decision Date: 10 July 1897
• Docket Number: 10185
• Citation: 49 P. 605,58 Kan. 475
• Parties: THEODORE MARTIN, Executor, v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

49 P. 605

58 Kan. 475

THEODORE MARTIN, Executor, v. THE MISSOURI PACIFIC RAILWAY COMPANY

No. 10185

Supreme Court of Kansas

July 10, 1897

Decided January, 1897.

Error from Cloud District Court. Hon. F. W. Sturges, Judge.

Judgment affirmed.

L. J Crans, for plaintiff in error.

Waggener Horton & Orr, for defendant in error.

OPINION

JOHNSTON, J.

On September 18, 1893, Lucy Bennett was struck and injured, at a street crossing in Concordia, by a moving train of the Missouri Pacific Railway Company. On the following day, she brought an action against the Company to recover for the injuries sustained by her, alleging that they were caused by the negligence of the Company. On December 7, 1893, she died, leaving a husband, L. D. Bennett, but no children. Some time before, she made a will, in which Theodore Martin was named as executor. The will was admitted to probate, and letters testamentary were issued thereon. Subsequently, an order was made reviving the action in the name of Theodore Martin, as executor, but the order was made over the objection of the surviving husband. In an amended petition filed by Martin as executor, he averred that the injuries to Lucy Bennett were caused by the wrongful act and neglect of the Company, and specifically alleged that her death resulted wholly from such injuries. Several defenses were set up by the Company, one of which was that the letters testamentary and the appointment of Theodore Martin were wholly void, because at the time of her death Mrs. Bennett left no property or estate whatsoever subject to administration or distribution under the law.

When the case was called for trial, the plaintiff restated that the injuries for which a recovery was sought were caused by the wrongful act and neglect of the Railway Company, and that the injuries so inflicted resulted in the death of Lucy Bennett. The Company conceded that the death was the result of the injuries sustained, but denied that they were caused by its neglect. On the part of the plaintiff, it was claimed that the action was brought for the benefit of the estate, and that, under section 420 of the Civil Code, it survived, and might be continued by the personal representative. On the part of the Company, it was contended that the plaintiff having pleaded and stated that the death of Mrs. Bennett resulted from injuries wrongfully inflicted by the Company, the action did not survive, and could not be maintained for the benefit of the estate; that in such a case there was a cause of action in favor of the next of kin, under section 422 of the Code. It being conceded that the action was not brought for the benefit of the next of kin, under section 422, the court excluded the evidence offered by plaintiff and dismissed the action.

The ruling of the court must be sustained. In an early case, an interpretation was given to these provisions, where it was held that, having been enacted at the same time, they must be construed in pari materia. It was there contended that a cause of action for injury to the person survived, and that an action might be brought by the personal representative for the benefit of the estate, although the injury resulted in death. The court, however, held:

"The purpose of section 422 is evidently not only to fix the amount of damages and limit them to the use of the widow and children or next of kin, but to take away the right of the administrator to sue for the benefit of the estate generally, where...