6 Alaska 334 | D. Alaska | 1921
At common law there was no civil action for death by wrongful act; such action is purely a creature of statute.
Section 1185 of the Compiled Laws of Alaska 1913 provides :
“Such action shall be commenced within two years after the death, and the damages therein shall not exceed ten thousand dollars, and the amount recovered, if any, shall be exclusively for the benefit of the decedent’s husband or wife and children when he or she leaves a husband, wife, or children, him or her surviving; and when any sum is collected It must be distributed by the plaintiff as if it were unbequeathed assets left in his hands, after-payment of all debts and expenses of administration, and when he or she leaves no husband, wife, or children, him or her surviving, the amount recovered shall be administered as other personal property of the deceased person.”
From the reading of this section it is apparent that, if the decedent leaves a htisband, wife, or children, then the estate has no interest whatsoever in any sum that may be recovered. It is only when no husband, wife, or children are left surviving decedent that the estate has any claim on the amount recovered.
“The personal representative, though designated as the person to bring the action, does not derive any right, title, or authority from his intestate, but he sustains rather the relation of a trustee in respect to the fund he may recover for the benefit of those entitled eventually to. receive it, and he will hold it when recovered actually in that capacity, though in his name as executor or administrator, and though in his capacity as personal representative, he may perhaps be liable on his bond for its proper administration.” 8 K. O. L. § 44, p. 756, and cases cited in notes 11 and 12.
This is not a question as to whether or not damages for injuries to property and personal injury to the owner of the property can be sued for in one action, but rather it is a question as to whether or not an action brought by an administrator in a trustee capacity is barred by an action brought by him in a totally different capacity.
Counsel for defendant have made but one citation which is in point, and that is the case of Cole’s Adm’x v. Illinois Central Ry. Co., decided by the Court of Appeals of Kentucky, 120 Ky. 686, 87 S. W. 1082. That case seems to be on all fours with the case at bar. The decision is based on the theory that the proceeds recovered are assets of the estate, but it is difficult to understand how a chose in action to which the intestate had no title and in the proceeds of which neither the estate nor creditors have any interest, but which are to go exclusively to the surviving spouse, can be considered as assets of an estate. The case is not fortified with authorities; it seems to stand alone.
“But as to. damages purely personal, following a policy which determines that in such assets the creditors are not equitably interested, the new legislation [Lord Campbell’s Act and other like legislation] gives the proceeds directly to persons named in the statute — a special statute of distribution for this particular ftind. Now, it is manifest that two suits are required to keep these two funds apart. If one suit were brought, there would be no way to apportion a verdict in solido, showing how much was for injury to property, and how much for injury purely personal; since the statute makes no provision for such apportionment, as it might have done. * * * Nominally, the parties are the same, and in a broad sense the cause of action and the issues are tlie same; but in a technical sense none of these conditions exist, as shown by the foregoing reference to the sources of the two suits, and their characteristics, respectively, and the case does not at all come within the familiar requirements of the principle of res adjudicata. The law, in its own wisdom, and in pursuance of its own distinct policies, splits the cause of action. The administrator is the trustee of two distinct funds, for two distinct purposes, and, technically, sues in two distinct capacities, as much as if he represented two decedents, or as if the Legislature had appointed some other agent to bring the personal injury suit rather than himself. * * In England, it has been held, not only that an administrator may bring two suits, as here suggested he must, but also that one who has been injured “both in property and person may, even while living, bring two suits. * * * [Citing several cases.] * * * Whatever may be said of bringing, while one is living, two suits for the same tort to person and property, there can be no objection, under existing statutes, to two suits by his administrator; indeed, there must essentially be two suits for the'reasons I have stated, if for no other.”
In the last note on page 167 of 50 L,. R. A. the author of that compilation says:
“Where the funds arising from a recovery for injuries to the different rights go to, or are required to be distributed to, different persons, two actions and two. judgments are required to keep the two funds separate.”
See, also, 15 R. C. L. p. 1013, § 486, text to note 10.
To the same effect is Needham v. Grand Trunk Ry. Co., 38 Vt. 294.
The demurrer to the plea of res judicata will be sustained.
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