Wright v. Smith

Decision Date08 October 1932
Docket Number30723.
Citation136 Kan. 205,14 P.2d 640
PartiesWRIGHT v. SMITH.
CourtKansas 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.

HARVEY, J., dissenting.

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.

DAWSON J.

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:

"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." R. S. 1923, 60--3203.

"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:

(a) Mesne profits,
(b) An injury to the person,
(c) An injury to real or personal estate,
(d) Deceit or fraud.

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:

"It is claimed that, whatever construction this court may give to section 422 [R. S. 60--3203], that plaintiff's cause of action is supported by section 420 of the code [R. S. 60--3201]. ***
"The plaintiff has declared on the cause of action given by section 422, and not on that given by section 420. But if sufficient facts were contained in the petition, so that section 420 could be considered, we do not think the position of the plaintiff would be any better to sustain his claim. *** In the revision of 1868, these sections were embodied in the civil code as sections 420 and 422, are a part of the same act, and were adopted at the same time. They must be construed in pari materia. 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 death resulted from the injuries. Section 420, as construed with section 422, only causes the actions to survive for injury to the person, when the death does not result from such injury, but does occur from other circumstances. The right of the action under section 422 is exclusive; and an administrator could not maintain an action under section 420 and 422 for the same injury. When death results from wrongful acts, section 422 is intended solely to apply."

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:

"Section 420 of the Civil Code, as construed with section 422, only permits action to survive for injury to the person when death does not result from the injury, but occurs from other causes. When death results from the injury, section 422 is exclusive. McCarthy v. Railroad Co., 18 Kan. 46 [26 Am.Rep. 742]; Tiff. Death Wrongf. Act, § 119. Under section 422, the action for damages or loss by death from the wrongful act or omission must be commenced by the personal representative of the deceased. * *
"Counsel for the defendants in error
...

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