112 Kan. 706 | Kan. | 1923
The opinion of the court was delivered by
A nine-year-old boy was run over by a delivery car of Miller Brothers, receiving fatal injuries. His father, Samuel J. D. Marshall, recovered a judgment against them on the ground that the accident was due to the negligence of their employee, and they appeal.
“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 damage 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.” (Civ. Code, § 419.)
The rule adopted by the trial court prevails in the greater number of jurisdictions where this matter has been passed upon. The cases are fully collected and classified in notes to the following text: “While under some decisions adhering to the strict rule that the sole measure of damages is the pecuniary loss occasioned by the destruction of life of the deceased person, there can be no recovery for medical or funeral expenses, the weight of authority is to the effect that recovery can be had for medical and funeral expenses which have been paid by the beneficiaries, or for which they are liable.” (17 C. J. 1338-1340; see, also, 8 R. C. L. 830.) The recovery in such an action as this is, of course, based upon the loss suffered by the beneficiaries and not upon that which falls upon the decedent’s estate; but to confine it, as some courts do, to the injury occasioned by the decedent “not being alive” is in our judgment to construe the statute too narrowly. If in the situation here presented the son’s right of action against the defendant — which covered claims for medical services and perhaps for burial expenses (see note, 7 A. L. R. 1334) — survived to his administrator for the benefit of his estate, there would be better ground for denying liability on ^hose items in the present proceeding for the benefit of the next of kin. But the operation of the statute which considered alone would permit such survival (Civ. Code, § 417) is held in this state, as in a number of others, to be limited by the Lord Campbell’s Act to cases where the death of the injured person results from some other cause than the injury. (Martin v. Railway Co., 58 Kan. 475, 49 Pac. 605; Note, L. R. A. 1915 E 1120.) Except for the statute here sued on, an administrator would have a right to recover for the benefit of the estate on account of medical expenses occasioned by a wrongful
We conclude that the items in question were proper elements of damage.
The judgment is affirmed.