White v. The Atchison

• Decision Date: 10 March 1928
• Docket Number: 27,819
• Citation: 265 P. 73,125 Kan. 537
• Court: Kansas Supreme Court
• Parties: MRS. DORA WHITE, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

265 P. 73

125 Kan. 537

MRS. DORA WHITE, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 27,819

Supreme Court of Kansas

March 10, 1928

Decided January, 1928

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DEATH--Beneficiaries of Right to Sue for Damages--Death of Widow Briefly Following that of Injured Husband. A man and his wife were fatally injured when the automobile in which they were riding was struck by a train on a highway crossing. The wife survived her husband for a period of about two hours, during which she was unconscious. They had no children. His mother, as next of kin, sued for damages consequent upon his death, under the statute relating to death by wrongful act, which provides that the damages must inure to the exclusive benefit of the widow and children, if any, or next of kin. Held, the right to damages was a property right which vested in the widow at death of her husband and inured to her exclusive benefit although not converted into money in her lifetime.

C. S. Ritter, of Iola, and Charles D. Shukers, of Independence, for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott and Alfred G. Armstrong, all of Topeka, for the appellee.

OPINION

BURCH, J.:

The action was one by a mother as next of kin to recover damages for death of her son. A demurrer to plaintiff's evidence was sustained, and she appeals.

The automobile in which Ferdinand Atkin and his wife were riding was struck by one of defendant's trains on a highway crossing at about 10:50 a. m. on October 16, 1925. Atkin and his wife were fatally injured. They were removed to a hospital, where they were examined by a physician at about 12 o'clock noon. Atkin lived about an hour after reaching the hospital, and Mrs. Atkin lived about two hours longer. She did not recover consciousness after the accident. They had no children, and were residents of Oklahoma. No administrator of Atkin's estate was appointed, and his mother, Dora White, brought the action, as next of kin. The statute 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 ten thousand dollars, 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.

"That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased." (R. S. 60-3203, 60-3204.)

The statute is remedial, and is to be liberally construed. The right to damages, however, is statutory, and conditional, and cannot be enforced except within the prescribed statutory limitations. (Walker v. O'Connell, 59 Kan. 306, 310, 52 P. 894; Harwood v. Railway Co., 101 Kan. 215, 221, 171 P. 354.)

The provision of the statute that the damages 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, disposes of property:

"The statute is dispositive of property interests and not regulative of modes of practice. . . . 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." (Railway Co. v. Ryan, 62 Kan. 682, 684, 685, 64 P. 603.)

The pertinent statute relating to distribution of personal property reads:

"If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents." (R. S. 22-119.)

There is no presumption of survivorship when persons perish by a common disaster. The question whether one survived another is to be determined as a matter of fact by evidence. ( Russell v. Hallett, 23 Kan. 276.) In this instance the plaintiff's evidence proved that Mrs. Atkin survived her husband. At his death the whole of his estate vested in her. None of it descended to his mother, and at Mrs. Atkin's death her estate descended to her parents, and not to her husband's parents. In precisely the same way, the species of property consisting of the interest of a beneficiary in damages consequent on death by wrongful act, vests in the beneficiary at death of the injured person. The cause of action to recover the damages accrues when death occurs. The action for damages must be brought within two years from date of death, and vesting of interest under the death statute is no more postponed to some indefinite future time than vesting of estate under the statute of descents and distributions.

In the opinion in the case of Matter of Meekin v. B. H. R. R. Co., 164 N.Y. 145, the court said:

"The amount of damages in this class of cases depends upon the value of the reasonable expectation of pecuniary benefits from the continuance in life by the decedent to the husband or wife and next of kin. This is a right of property which becomes vested in the beneficiaries at the moment of death and can be converted into money through a statutory action brought for their benefit by the personal representatives, who are simply trustees for the purpose." (p. 149.)

The personal representative of the deceased who, under R. S. 60-3203, is alone authorized to sue, is a statutory agent to collect and disburse the damages. He does not act for himself, or for the estate of the deceased, but for the benefit of the distributees. (Jeffries v. Mercantile and Elevator Co., 103 Kan. 786, 176 P. 631.) R. S. 60-3204 was subsequently enacted to preserve the remedy in case no personal representative was appointed, or in case of nonresidence of the deceased. (Berry v. K. C., Ft. S. & M. Rld. Co., 52 Kan. 759, 34 P. 805; Cox, Adm'r, v. Kansas City, 86 Kan. 298, 120 P. 553.) Whoever sues does so in the statutory capacity. If the deceased left a widow and children, and the widow, being qualified to sue, does so, she sues for the benefit of herself and her children. Should the deceased leave no statutory beneficiary, his personal representative has no office to perform.

The damages recoverable must inure to the exclusive benefit of the "widow and children if any, or next of kin." The word "or" is here used in the usual alternative sense of one but not both, and the statute creates preferred classes of beneficiaries. Use of the word "or" to establish priorities is exhaustively treated in the opinion in the case of Wilcox v. Warren Construction Co., 95 Ore. 125. Frequently the word "or" may be read "and," but there must be reason for doing so. The real intention of the legislature to use the word in the sense of "and" when the statute was enacted must be clearly demonstrable, and it is not enough that a statute reading "or" and meaning "or" when it was enacted, would now be more efficient, or would now serve a wider purpose if read "and." In this instance, "or" was evidently deliberately chosen.

Lord Campbell's act was of course the prototype of the statute. But with Lord Campbell's act before it, the legislature framed a statute according to its own conception of what the liability for death by wrongful act should be in Kansas. Lord Campbell's act contained the following provisions:

"II. And be it enacted, That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct.

"III. Provided always, and be it enacted, That not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person.

"IV. And be it enacted, That in every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant or his attorney a full particular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered." (St. 9 & 10 Vict. c. 93.)

Under this act, the action is for the collective benefit of designated members of the family of the deceased. Damages proportioned to the injury suffered by the respective beneficiaries are to be divided among them in such shares as the jury may find and direct, and the one action by the personal representative, commenced within twelve months, may be maintained for the benefit of...