Howard's Admr. v. Hunter
104 S.W. 723
Ky. Ct. App.
1907
Check Treatment

Opinion cf the Court by

Judge Carroll

Reversing.

Arre tus Howard was shot and killed by appellee, Hunter. He did not leave surviving him a widow, child, or children. This action was instituted by his personal representative to recover damages for his *687death, which was alleged to have been negligently and wrongfully caused by the act of appellee. The court sustained a general demurrer to the petition. "Whether this ruling was correct or not, is the only question presented by this appeal.

Section 241 of the Constitution provides that: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in еvery such ease damages may be recovered for such death from the corporation and person so causing the same; until otherwise provided by law, the action to reсover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the reсovery shall go and to whom belong; and until such provision is made, the same shall form a part of the personal estate of the deceased person.” To make more effeсtive the purpose of this section, the Legislature enacted section 6 of the Kentucky Statutes of 1903, reading: “Whenever the death ‍​​​‌‌‌‌‌​​​​​‌​​​​‌‌​​​​​​‌‌​‌​​‌‌‌​‌‌‌‌‌​​​​‌‌‌‍of a person shall result from an injury inflicted by a negligent оr wrongful act, then in every such case damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same; and when the act is willful or negligence gross, punitive damages may be recovered; and the action to recover such damages shall be prosecuted by the personal representative of the deceased.” The remainder of the section relates to the distribution of the amount recovered. This section is found in an act approved July 3, 1893 (Laws 1893, p. 1383, c. 252), and section 4 of the act provides that: “The widow and minor child, or either or both of them of a person killed by the careless, *688wanton, or malicious use of firearms, or by any weapon popularly known as colt’s, brass knuckles, slung-sbots, or other deadly weapon, or sand bag, or any imitation or a substitute therefor, not in self-defense, may have an action against the person who committed the killing, and all others aiding or promoting, or any one or more of them; and in such action the jury may give vindictive damаges. ’ ’

The lower court sustained a demurrer to the petition upon the ground that under section 4, supra, the right of action to recover damages for the death of a person killed by the careless, wanton, or malicious use of firearms is vested exclusively in the widow and minor child of the deceased; and if the deceased does not leave surviving ‍​​​‌‌‌‌‌​​​​​‌​​​​‌‌​​​​​​‌‌​‌​​‌‌‌​‌‌‌‌‌​​​​‌‌‌‍him a widow or minor child or children the right of action dies with him, and does not survive to his personal representative. This ruling was largely, if not altogether, influenced by the opinion of this court in McClure v. Alexander, 24 S. W. 619, 15 Ky. Law Rep. 732. In that case Alexander shot and killed McClure. The widow and an infant daughter of the deceased instituted an action against Alexander to recover damages for the death of McClure. The trial court dismissed the petition for the alleged reason that the cause of action was alone in the personal representative of the deceased by virtue of section 241 of the Cоnstitution. In reversing the case, it was held not to be the intention of the Legislature in the enactment of section 6, supra, to repeal section 4, and in the course of the opinion the сourt said that when the deceased left a widow or minor child the right of action was in them. The precise question here presented was not involved in that case. If that opinion may be so construed as to deny the right of *689a personal representative to maintain the action,, when the deceased does not leave a widow or minor child, it is in conflict with the views now entertained by the court, and will not be followed. The proper construction of the statute is that, if- the deceased leaves a widow and minor child or children then the action may be prosecuted by them; if he is not survived by either, then his personal representative may sustain it. It was the manifest intention of the constitutional provision quoted to allow an action to be maintained whenever the death of a person was caused by the negligent or wrongful act of another and it is not within the power of the Legislature to deny this right of action. The section is as comprehensive as language can make it. The words “negligence” and “wrongful act” are sufficiently broad to embrace every degree of tort that can be committed against the person. In Shearman & Redfield on Negligence, section 3, “negligence” is thus defined: “Negligence, constituting a cause of civil action, is such an omission by a responsible person to use thаt degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury, as in a natural and continuous sequence causes unintended damаge to the latter. ’ ’ The word “negligence” implies a breach of duty, and a person cannot ‍​​​‌‌‌‌‌​​​​​‌​​​​‌‌​​​​​​‌‌​‌​​‌‌‌​‌‌‌‌‌​​​​‌‌‌‍be legally negligent so as to subject him to damages except in respect to others to whom he owes a duty. Hence, as the word “negligence” has a limited meaning, the words “wrongful act” were used to embrace every injury that might be committed against the person, whether negligеntly done or not. A wrongful act may or may not be negligent, depending on how it is committed and the relation between the parties. Many wrongful acts are com*690mitted in which there is no element of negligence— no breach of duty is committed. A wrongful act may be criminal, willful, wanton, or reckless. In short, every injury inflicted upon the person without legal right or excuse is a wrongful act without reference to the relation existing between the perpetrator and his victim.. Clearly the death of a person caused by the careless, wanton, or malicious use of firearms is a wrongful аct as much so as if the death was due to a blow from an iron poker, or an ax or any other instrument. It would be a most anomalous state of affairs to hold that the personal reprеsentative might maintain ah action for damages resulting from the death of his intestate caused by any careless, wanton, or malicious act, except when the weapon used to infliсt the death was a firearm or other deadly weapon. The effect of this construction would be that if the death was caused by smothering, drowning, burning, or poisoning, the cause of action would survive to the personal representative; but if it was caused by the use of firearms, or other deadly weapons, it would die with him, unless he left a widow or minor children. Any act that is wanton or maliciоus is necessarily wrongful, and whenever death is caused by a wrongful act, however it may be committed, or whatever the means or instrument used in its commission may be, a cause of action survives tо the personal representative. Any other interpretation would seriously impair, if not destroy, the meaning of the words “wrongful act” found in the Constitution and inserted for the purpose of allоwing a cause of action for the death of any person caused by such act. If the deceased, who is killed by the use of any of the weapons mentioned in section 4 of the statute, lеaves a widow and minor child, or either, then the action *691may.be maintained by them under section 4; but, if he leaves neither, then his personal representative may sue under section 6 of the stаtute. If the action is brought under section 4 by the widow and minor child, the pleading must follow the terms prescribed in the section. There is no conflict between the sections. Both may be upheld. Section ‍​​​‌‌‌‌‌​​​​​‌​​​​‌‌​​​​​​‌‌​‌​​‌‌‌​‌‌‌‌‌​​​​‌‌‌‍6 merely enlarges the remedy and gives a right of action not authorized by section 4. And so, if the widow or minor children will not prosecute the action under section 4, then the personal representative may do so under section 6, and, if the personal representative fails or refuses, the widow or minor child may sue. McLemore v. Sebree Coal & Mining Co., 121 Ky. 53, 88 S. W. 1062, 28 Ky. Law Rep. 25. But if the deceased leaves a widow or minor child, the right of action is primarily in them. This construction' gives full force and effect to botli the Constitution and the statute, while the one contended for by appellee would take away from the constitutional provision, and the statute enacted in pursuance thereof, a large part of their meaning.

We have not deemed it necessary to сonsider' the state of the law prior to the adoption of the present Constitution, Previous to that time, when death resulted from negligence or wrongful act, there was considerable сonfusion and uncertainty, not only as to whom the cause of action to recover damages was in, but when it might be maintained, if at all. In O’Donoghue v. Akin, 2 Duv. 478; Eden v. Lex. & Frankfort R., 14 B. Mon. 165; Harris v. Ky. Timber & L. Co., 43 S. W. 462, 45 S. W. 94, 19 Ky. Law Rep. 1731; Gregory v. I. C. R. Co., 80 S. W. 795, 26 Ky. Law Rep. 76; Spring v. Glenn, 12 Bush 172; Morgan v. Thompson, 82 Ky. 383, 6 Ky. Law Rep. 499; *692Jordan v. C., N. O. & T. P. R. Co., 89 Ky. 40, 11 S. W. 1013, 11 Ky. Law Rep. 204, will be found opinions illustrative of tbis subject. To remеdy this confusion and uncertainty, and ‍​​​‌‌‌‌‌​​​​​‌​​​​‌‌​​​​​​‌‌​‌​​‌‌‌​‌‌‌‌‌​​​​‌‌‌‍remove all doubt touching the right of recovery, section 241 of the Constitution was enacted.

Wherefore the judgment of the lower court is reversed, with directions for a new trial in conformity with this opinion.