Wright v. Smith
Decision Date | 08 October 1932 |
Docket Number | 30723. |
Citation | 136 Kan. 205,14 P.2d 640 |
Parties | WRIGHT v. SMITH. |
Court | Kansas Supreme Court |
Syllabus by the Court.
Cause of action for wrongful death is exclusively conferred by statute relating to wrongful death and not by survivorship statute (Rev. St. 1923, 60--3201, 60--3203).
Cause of action for wrongful death in automobile accident held not to survive wrongdoer's death, and therefore was not maintainable against wrongdoer's administrator (Rev. St 1923, 60-- 3201, 60--3203).
Cause of action for destruction of automobile held to survive death of owner and death of wrongdoer, and therefore maintainable against wrongdoer's administrator (Rev. St. 1923 60--3201, 60--3203).
1. A right of action for causing the wrongful death of a human being is exclusively conferred by R. S. 60--3203, not by R S. 60--3201.
2. A cause of action for damages for wrongfully causing the death of a person does not survive the death of the wrongdoer and cannot be instituted against his administrator.
3. Under the precise terms of R. S. 60--3201, a right of action for causing the destruction of an automobile survives the death of its owner and likewise survives the death of the person causing its destruction.
4. Wright and Armstrong, while driving their automobiles on the highway, met in head-on collision, and both were killed. Wright's administratrix sued Armstrong's administrator for damages for Wright's death and for the destruction of his automobile, alleging that Wright died instantly, that Armstrong died shortly afterwards, and that the collision and its consequences were caused by the negligence of Armstrong. Held, the action was not maintainable against Armstrong's administrator for the alleged wrongful death of Wright; but was maintainable in behalf of Wright's estate for the item of damages involved in the destruction of his automobile.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
Action by Lucy E. Wright, administratrix of the estate of Albert E Wright, deceased, against James E. Smith, administrator of the estate of Alfred G. Armstrong, deceased. Judgment for the defendant, and the plaintiff appeals.
Affirmed in part and reversed in part and the cause remanded.
J. J. Schenck and C. P. Schenck, both of Topeka, and Ralph U. Pfouts, of Atchison, for appellant.
Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, M. F. Cosgrove, Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, for appellee.
This is an appeal from a judgment sustaining a demurrer to a petition which purported to plead a cause of action for the wrongful death of Albert E. Wright and for the negligent destruction of his automobile.
On the night of April 30, 1930, Wrig7ht was driving westward on federal highway No. 40 a few miles west of Kansas City. At the same time Alfred E. Armstrong was driving eastward on the same highway. Their automobiles collided; both men were killed, and Wright's automobile was destroyed.
This action was brought by the administratrix of Wright's estate, on the personal behalf of herself as his widow and sole heir. The defendant is the administrator of Armstrong's estate. Plaintiff alleged that the fatal collision was caused by the negligence of Armstrong, that Wright was instantly killed, and that Armstrong died shortly afterwards.
Plaintiff prayed judgment for $10,000 for the death of Wright and for $750 for the destruction of his automobile.
The trial court sustained a demurrer to plaintiff's petition, and the correctness of that ruling is the question presented for our review.
Counsel for plaintiff direct our attention to three paragraphs of the statute which read:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same." Id., 60--3201.
"No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant." Id., 60--3202.
Probably no sort of lawsuit is more familiar to the bench and bar than one of the kind sanctioned by R. S. 60--3203 brought on behalf of the next of kin of a person killed through the negligence or wrongdoing of another. If Alfred Armstrong were alive, he could be subjected to an action in behalf of Wright's widow for damages for negligently causing the death of her husband. But where is the authority for such an action against Armstrong's administrator? Counsel for appellant say it is given by the terms of R. S. 60--3201. Let us critically examine that section as quoted above. We need not concern ourselves with the sort of causes of action which survive at common law. Counsel for these litigants agree that an action for damages for the wrongful death of a person is not of that character. By the express terms of R. S. 60--3201, a cause of action will survive the death of the party who in his lifetime would have been entitled to maintain it, and it will also survive the death of the party "liable to the same," for any of the following:
It hardly needs to be observed that "mesne profits," "injury to real or personal estate," or "eceit or fraud" have no bearing on so much of the case at bar as is concerned with the death of Albert Wright. Does the provision allowing revivor of a cause of action for "an injury to the person" cover the matter? At first blush it might seem so, but upon examination of the decisions of this court for half a century we find that it is stare decisis that the right of revivor of an action for an injury to the person does not cover the case of a personal injury which causes the death of the injured person. To illustrate: If Armstrong had struck Wright with his fist, Wright would have a cause of action against Armstrong for injury to his person. And under R. S. 60--3201 such a cause of action would survive the death of Wright if he had died of smallpox or of any ailment not at all related to the personal attack made on him by Armstrong. But where the injury to the person actually causes the death of the injured person the right of redress is given by R. S. 60--3203 exclusively.
This ruling was first announced fifty-five years ago in the case of McCarthy, Adm'r, v. Railroad Co., 18 Kan. 46, 52, 26 Am.Rep. 742, where it was said:
The same ruling has been uniformly declared in the later cases wherein this court has had to consider the point. In City of Eureka v. Merrifield, 53 Kan. 794, 37 P. 113, where the parents of a two year old child recovered judgment in the district court for its death caused by falling into a privy vault situated beside an alley which the city had negligently permitted to exist without railing or guard, this court reversed the judgment, saying:
To continue reading
Request your trial-
Mull v. Wienbarg
... ... Short. It is a maxim of ... the common law that if the reason for a rule fails, the rule ... itself should fail. In re Smith's Estate, Wyo ... 97 P.2d 677, 11 C. J. S. 224. The rule of stare decisis is ... not an absolute one. Kelley v. Rhoads, County ... Assessor, 7 ... also 1 C. J. S. 172, note 62. We find no cases to the ... contrary. Thus it is said, for instance, in Wright vs ... Smith, 136 Kan. 205, 14 P.2d 640, in which the court, ... holding that a cause of action instituted after the ... tortfeasor's death did ... ...
-
Jones v. Goodman
...reiterations of it is contained in syllabus 1 by the court in Kelly v. Johnson,25 decided in 1938, reading: "Following Wright v. Smith, 136 Kan. 205, 14 P.2d 640, it is held that a right of action for causing wrongful death is exclusively conferred by G.S. 1935, 60-3203, and not by G.S.1935......
-
Ruff v. Farley Machine Works Co.
... ... plaintiffs could not bring an action against Jack Farley, or ... the administrator of his estate. Wright v. Smith, ... 136 Kan. 205, 14 P.2d 640; Kelly v. Johnson, 147 ... Kan. 74, 75 P.2d 209, but see Chapter 233, Laws 1939, which ... seems to change ... ...
-
Prowant v. Kings-X, Inc.
...County Commissioners, 121 Kan. 85, 245 P. 1052; Routh v. List & Weatherly Construction Co., 124 Kan. 222, 257 P. 721; Wright v. Smith, 136 Kan. 205, 14 P.2d 640. In the case of Martin v. Missouri Pac. Railway Co., supra [58 Kan. 475, 49 P. 606], the rule of the McCarthy case was again broug......