5 Kan. App. 231 | Kan. Ct. App. | 1896
The controversy in this case arises out of certain proceedings instituted by the plaintiff in error, The Missouri Pacific Railway Company, in the Probate Court of Cloud County, Kansas, to secure the revocation of the appointment, by said court, of the defendant in error, Theodore Martin, as executor of the estate of Lucy Bennett, deceased. The Probate Court refused to hear any evidence in support of such application, and denied the same. An appeal was thereupon taken to the District Court of said county, a petition in error also being filed therein, for the purpose of reviewing the decision of the Probate Court. On motion of the defendant in error, said appeal and petition in error were dismissed by the District Court, and to reverse such judgment of dismissal the case has been brought to this court. The Railway Company bases its right to appear in the Probate Court and contest the validity of the letters of administration issued to Theodore Martin, on the ground that said Lucy Bennett, deceased, had no estate to be administered ; that said appointment was merely colorable and invalid; and that the Railway Company was interested therein because of the fact that said Theodore Martin, as executor of said estate, was attempting to prosecute an action, commenced by said Lucy Bennett in her lifetime in the District Court of said county, against said Railway Company to recover damages for personal injuries alleged to have been sustained by her through the negligence of said Company. The record does not disclose when the injuries complained of were inflicted, except that it was sometime prior to September 19, 1893, on which day Lucy Bennett commenced the action which was pending and undetermined at the time of her death, Decern
Under the practice recognized and established by the Supreme Court in this class of cases, the questions presented for our consideration are of little practical importance to either of the parties, from the fact that the matters alleged and attempted to be shown by the Railway Company in the Probate Court, could be shown as a defense in the main action pending in the District Court. In that case, the defendant had a right to put in issue the appointment and authority of the plaintiff as executor, and if it appeared that the appointment was invalid and void, the action would fail. City of Atchison v. Twine, 9 Kan. 350 ; Perry, Adm’r, v. St. J. & W. Rld. Co., 29 id. 420 ; U. P. Rly. Co. v. Dunden, 37 id. 1. In the view we take of the case, we do not deem it necessary to decide as to the right of the plaintiff in error to appear in the Probate Court and contest the validity of the letters issued by it. There seems, however, no good reason why such a practice should not be recognized, and the tribunal which issued the letters given an opportunity to revoke them, if improperly granted, thus effectually terminating a false and merely colorable administration. Such a practice would, in a regular manner, finally relieve and discharge the person assuming to act as executor or administrator, and would avoid useless and, perhaps, expensive complications. There is, also, precedent and authority for it. Wheeler, Adm’r, v. St. J. & W. Rld. Co., 31 Kan. 640 ; Jeffersonville Rld. Co. v. Swayne’s Adm’r, 26 Ind. 477.
“ Sec. 420. 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.
“ Sec. 421. 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.
“ Sec. 422. 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.”
Counsel for plaintiff in error contend, that the cause of action which Lucy Bennett had in her lifetime became extinct at her death; that, thereafter, no right of action existed, except such as was given by section 422, and that the damages recoverable would not be assets of the estate. In support of this contention, we are referred to what is
“Section 420, as construed with section 422, only-causes the actions to survive for injuries to the person, when the death does not result from such injury, but does occur from other circumstances. . . . When death results from wrongful acts, section 422 is intended solely to apply.”
ing the death of the person injured, as compensation for the loss and suffering which he sustained in his lifetime by reason of bodily hurt wrongfully inflicted (Railroad Co. v. Rowe, 56 Kan. 412) ; in the other, they are recoverable as compensation to a designated class because of the pecuniary loss sustained by them by reason of his death. Perry v. Railroad Co., 29 Kan. 420. The measure of the damages, and the beneficiaries thereof, are entirely different and separate in the two classes of cases. We can find nothing in section 422 indicating that the Legislature intended thereby, in any way, to affect a cause of action which existed at common law.
“We are entirely agreed that where death occurs in consequence of a bodily injury, two causes of suit or action may arise, one in favor of the deceased for his loss and suffering resulting from the injury in his lifetime, and revived by the act of 1847, the other founded on his death, or in the damages resulting from his death to his widow and next of kin, under the act of 1849. Both actions are to be prosecuted in point of form in the name of his personal representative, but the damages in the two suits are given upon entirely different principles and for different purposes. . . . The principle that a wrong resulting in death affords, under these statutes, two different causes of suit, obviates many difficulties that would arise under a different rule. - We think the principle fairly deduoible from the statutes, and that it is in harmony with the law applicable to analogous cases. It allows the estate to take its own, and the widow and next of kin to take exclusive benefit of the provisions of the latter statute.”
The same principle was recognized and applied in Bowes v. City of Boston, supra, and is stated in the opinion of the court as follows :
‘ ‘ The right of action given to an administrator . to sue for his intestate’s loss of life for the benefit of the widow, is independent of the administrator’s right to sue for damages suffered by the intestate in his lifetime from the injury which caused his death, and both actions may proceed at the same time.”
Section 421 goes even further than section 420, and •would seem to apply to the facts of this case without question. It clearly includes the action of Lucy Bennett which was pending in the District Court of Cloud County at the time of her death. But, as we understand the contention of the plaintiff in error, it is claimed that while the action did not abate by the death of the plaintiff therein, it, by some peculiar method of devolution, was transformed into an action for the recovery of damages for the benefit of the next of kin; that it became extinct as an action to recover damages for the injuries sustained by Lucy Bennett, but was revived as an action for the damages sustained by those who had a pecuniary interest in the continuance of her life. We are clearly of the opinion that no such transformation of the case was permissible ; that if it failed as an action to recover for the loss and suffering sustained by the original plaintiff, it became extinct for all purposes. As before stated, the causes of action are separate and distinct, the only element in common being the wrongful act of the defendant. Such wrongful act, causing the bodily hurt, gave rise to a cause of action in her favor to recover damages for the resulting loss and suffering. The same wrongful act, causing' her death and thereby causing a pecuniary loss to the next of kin, gave rise to a cause of action to be prosecuted for their benefit. A revivor of the pending action would revive it as an action to be prosecuted for the same cause that existed when the action was commenced. No right of amendment would enable the personal representative of the deceased plaintiff to abandon the original cause of action, and convert the action into one based on an entirely new injury, — the
“This act does not transfer this right of action [for the loss and suffering of the deceased ] to his representative, but gives to his representative a totally new right of action on different principles.”
See, also, Whitford v. Panama Rld. Co., 23 N. Y. 465.
It cannot be objected that this construction gives two actions for the same cause. The actionable injuries are not the saíne. Although the responsible cause is the same wrongful act, yet, in the one case, the injury which gives the right to recover damages is the bodily hurt, resulting in loss and suffering to the person injured, in his lifetime, and thus affecting Ms estate ; in the other, the injury is his death, resulting in loss to those who are pecuniarily interested in the continuance of his life. In principle it is the same as where the same negligent or wrongful act, at the same time, injures two different persons. Each has a right of action to recover the particular damages sustained by Mm.
We conclude, therefore, that the action survived solely for the purpose of recovering damages for the benefit of the estate, as compensation for the loss and suffering sustained by Lucy Bennett, in her lifetime, as the result of the bodily hurt inflicted upon her. If it be conceded that it did not survive for that purpose, then it follows that the action was abated by her
The judgment will be affirmed.