Totten v. Loventhal
| Decision Date | 13 December 1963 |
| Citation | 373 S.W.2d 421 |
| Parties | C. W. TOTTEN, Administrator of the Estate of Etta Mae Totten, Deceased, Appellant, v. H. B. LOVENTHAL, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. B. Gathright, Louisville, for appellant.
R. I. McIntosh, John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellee.
E. J. STAHR, Special Commissioner.
This appeal is from an order of the trial court which refused to permit the filing of an amended complaint and dismissed the complaint upon a plea of limitations entered by the appellee.
The primary question to be determined is whether the original complaint stated a claim which survives under KRS 413.180(1) or one that is barred under KRS 413.140(1)(a).
Etta Mae Totten, the appellant's decedent, died December 10, 1958, after an alleged injury on December 1, 1958; the appellant was appointed administrator of her estate on September 25, 1959, and filed his original complaint on September 23, 1960; appellee answered on October 6, 1960, and amended his answer on February 23, 1961 and on March 1, 1961, appellant offered an amended complaint.
In his original complaint appellant alleged jurisdictional facts and then alleged that appellee was the owner of the property involved and that he negligently permitted water to flow onto and freeze and remain on the sidewalk in the front of said property and then alleged:
'Plaintiff states that the deceased, Etta Mae Totten, was walking on said sidewalk and when in front of the property of the defendant she slipped on the ice coating on the sidewalk and fell breaking her hip, and that she was taken to the hospital where as a result of this injury, which occurred on December 1, 1957, (obviously intended to be 1958 (she died on December 10, 1958, to the damage of her estate. * * *' (Emphasis added)
The amended complaint after adopting each and every allegation of the original complaint said that the deceased:
'* * * as a result of her fall on the ice, in front of the property of the defendant, suffered great mental and physical pain from the time of her injury until the time of her death.'
In Cottengim's Adm'r v. Adams' Adm'x, Ky., 255 S.W.2d 637, 638, 36 A.L.R.2d 1142, we said:
'Where a person is killed by the wrongful act of another, the personal representative of the deceased may elect whether to use to recover damages for the wrongful death of his decedent or to sue to recover damages for the pain and suffering of his decedent, but he cannot sue to recover damages for both wrongful death and for pain and suffering. * * *'
To the same effect are Louisville & N. R. Co. v. Simrall's...
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Morrell v. Williams
...recovery of damages for solatium under a wrongful death statute created a new cause of action). To similar effect are Totten v. Loventhal,373 S.W.2d 421 (Ky.1963); Serio v. Slifkin, 291 Ill.App. 614, 9 N.E.2d 422 (1937); Paskes v. Buonaguro, 42 Misc.2d 1004, 249 N.Y.S.2d 943 (Sup.Ct.Spec.Te......
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Siroonian v. Textron, Inc.
...wrongful death action, which is conferred originally in the personal representative and never existed in the decedent. Totten v. Loventhal, 373 S.W.2d 421, 422 (Ky.1963); Faulkner's Adm'r, 212 S.W. at ...
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Smith v. Elliard
...as one seeking damages for wrongful death and as failing to state a claim for the decedent's own personal injuries. In Totten v. Loventhal, 373 S.W.2d 421 (Ky., 1963), the Kentucky Court of Appeals gave such an interpretation to a similarly worded complaint. There, the complaint essentially......
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Conner v. George W. Whitesides Co.
...apply to wrongful death claims. Faulkner's Adm'r. v. Louisville & N.R. Co., 184 Ky. 533, 212 S.W. 130 (1919). See also, Totten v. Loventhal, Ky., 373 S.W.2d 421 (1963); Massie v. Persson, Ky.App., 729 S.W.2d 448 (1987). In the Totten and Massie cases, the respective courts held that KRS 413......