58 Kan. 475 | Kan. | 1897
On September 18,1893, Lucy Bennett was struck and injured, at. a street crossing in Concordia, by a moving train of the Missouri Pacific Railway Company. On the following day, she brought an action against the Company to recover for the injuries sustained by her, alleging that they were caused by the negligence of the Company. On December 7, 1893, she died, leaving a husband, L. D. Bennett, but no children. Some time before, she made a will, in which Theodore Martin was named as executor. The will was admitted to probate, and letters testamentary were issued thereon. Subsequently, an order was made reviving the action in the name of Theodore Martin, as executor, but the order was made over the objection of the surviving husband. In an amended petition filed by Martin as executor, he averred that the
When the case was called for trial, the plaintiff restated that the injuries for which a recovery was sought were caused by the wrongful act and neglect of the Railway Company, and that the injuries so inflicted resulted in the death of Lucy Bennett. The Company conceded that the death was the result of the injuries sustained, but denied that they were caused by its neglect. On the part of the plaintiff, it was claimed that the action was brought for the -benefit of the estate, and that, under section 420 of the Civil Code, it survived, and might be continued by the personal representative. On the part of the Company, it was contended that .the plaintiff having pleaded and stated that the death of Mrs. Bennett resulted from injuries wrongfully inflicted by the Company, the action did not survive, and could not be maintained for the benefit of the estate ; that in such a case there was a cause of action in favor of the next of kin, under section 422 of the Code. It being conceded that the action was not brought for the benefit of the next of kin, under section 422, the court excluded the evidence offered by plaintiff and dismissed the action.
The ruling of the court must be sustained. In an early case, an interpretation was given to these provisions, where it was held that, having been enacted 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 action under section 422 is exclusive ; and an administrator could not maintain an action under sections 420 and 422 for the same injury. When death results from wrongful acts, section 422 is intended solely to apply.” McCarthy v. Railroad Co., 18 Kan. 46.
Since that time, the courts of the State have generally regarded the McCarthy case as a controlling decision, and the construction there placed upon these provisions as á correct one. Quite recently, the same question was re-examined and the ruling then made re-affirmed. Eureka v. Merrifield, 53 Kan. 794. It was held that section 420 permits actions to survive for injury to the person only when death does not result from the injury, but occurs from other causes. Where, however, death results from the wrongful act or omission of another, section 422 is exclusive. As tending to sustain that view the following cases are cited: Andrews v. H. & N. H. Rld. Co., 34 Conn. 57 ; Read v. Great E. Rly. Co., 3 Q. B. 555 ; Railroad Co. v. O’Connor, 19 Brad. (Ill. App.) 591; Holton v. Daly, 106 Ill. 131; C. & E. I. Rld. Co. v. O’Connor, 119 Ill. 586 ; Tiffany on Death by Wrongful Acts, § 119.
The correctness of this interpretation is again chai
The judgment of the District Court will be affirmed.