Prowant, Administratrix v. KINGS-X

337 P.2d 1021, 184 Kan. 413, 1959 Kan. LEXIS 328

• Court: Supreme Court of Kansas
• Decided: April 11, 1959
• Docket: 41,114
• Status: Published

Opinions

The opinion of the court was delivered by

Jackson, J.:

In June, 1955, R. J. Prowant, the appellant’s intestate, filed an action for personal injuries alleged to have been suffered when a counter stool in appellee’s cafe gave way causing him to fall to the floor. Before the action was ready for trial, Prowant died on December 27, 1956. In due course the pending action was revived by the appellant as administratrix (see G. S. 1949, 60-3201). Thereafter, appellant as plaintiff filed her amended petition containing two causes of action. The first cause was based upon the injuries suffered by Mr. Prowant in his lifetime and for which he had begun his action prior to his death. In this count, plaintiff sought to recover $50,000 for the benefit of the estate of the decedent. The second cause of action was based upon the provisions of G. S. 1957 Supp. 60-3203, and the plaintiff sought therein to recover $25,000 for the benefit of the surviving widow and children of the decedent based upon the theory that decedent’s death had been caused by the injuries sustained in falling from the counter stool in defendant’s cafe.

In the first petition filed by the administratrix, the first cause of action as above described did not contain any allegation as to the cause of decedent’s death. The appellee as defendant moved that plaintiff be required to set forth whether or not decedent’s death occurred as the result of the injuries alleged to have been sustained. The district court sustained the motion to make the count definite, and plaintiff amended by inserting the following allegations:

“The death of plaintiff’s decedent was not caused by the fracture of the coccyx or suffering attendant upon this particular injury. Plaintiff’s death was caused by the cancerous condition in one testicle and parts of the body adjacent to this, and by the course of this cancerous condition and treatment. This cancerous condition in the body of plaintiff’s decedent was caused or aggravated by the jolt and bruising of the testicle complained of herein, according to plaintiff’s understanding and belief, which, however, is denied by defendant.”

Following this amendment, the district court on motion of the defendant struck the first cause of action from the petition of the administratrix. This appeal is for the purpose of testing the propriety of the court’s order.

It cannot be doubted that in making the order appealed from, the learned trial judge followed the interpretation of our statutes made in previous decisions by this court. The appellant is fully cognizant of our former cases, but maintains in a carefully written brief that those cases were wrongly decided in the first instance, have no logical support in reason, and should be overruled.

In the early case of McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, the court held that the purpose of section 422 of the old civil code was not only to give an action for wrongful death — as had been done under Lord Campbell’s act in Great Rritain — but that “Section 420 (of the code providing for survival of actions for personal injuries), 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 the action under section 422 is exclusive; and an administrator could not maintain an action under section 420 and 422 for the same injury. When death results from wrongful acts, section 422 is intended solely to apply.” (p. 52.)

Although the McCarthy case has been criticized, this court has cited it on numerous occasions. The following cases recognize the above rule of the McCarthy case to be the law in Kansas, however Lord Campbell’s act statutes have been construed in other jurisdictions: City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113; Martin v. Railway Co., 58 Kan. 475, 49 Pac. 605; Sewell v. Railway Co., 78 Kan. 1, 13, 96 Pac. 1007; Goodyear, Administratrix, v. Railway Co., 114 Kan. 557, 220 Pac. 282; Hendrix v. Wyandotte County Commissioners, 121 Kan. 85, 245 Pac. 1052; Routh v. List & Weatherly Construction Co., 124 Kan. 222, 257 Pac. 721; Wright v. Smith, 136 Kan. 205, 14 P. 2d 640.

In the case of Martin v. Railway Co., supra, the rule of the McCarthy case was again brought under attack. The opinion of the court was written by the then Mr. Justice Johnston. After quoting from the McCarthy case substantially as above, the later great Chief Justice of this court continued:

“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 a correct one. Quite recently, the same question was reexamined and the ruling then made reaffirmed. 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. 1. Rld. Co. v. O’Connor, 119 Ill. 586; Tiffany on Death by Wrongful Acts, § 119.

“The correctness of this interpretation is again challenged, but we think the view so early taken, and which has been generally accepted and acted upon ever since, should be upheld. It is to be noted that, although the rule was announced more than twenty years ago and has been followed by the courts ever since that time, the Legislature has not amended the law nor attempted to modify the rule which the court announced. We think the rule should be upheld, and do not feel warranted in entering anew upon a discussion of its correctness.”

The case of Railway Co. v. Bennett, 58 Kan. 499, 49 Pac. 606, is a companion case to Martin v. Railway Co., supra, and was handed down on the same day. In the Bennett case the rule of the McCarthy case is not discussed, except to show that a contrary holding of the Court of Appeals in Mo. Pac. Rly. Co. v. Bennett’s Estate, 5 Kan. App. 231, 47 Pac. 183, was disapproved, see p. 500 of the Bennett opinion.

Some thirty-five years after the date of Martin v. Railway Co., supra, the rule of the McCarthy case was questioned in Wright v. Smith, supra. Thereupon, Mr. Justice Dawson, who also became an eminent Chief Justice of this court, made a careful account of substantially all of the cases adhering to the rule, see page 207 of the opinion, et seq. In the Wright case, the wrongdoer as well as the alleged victim had died in an automobile accident, and section 60-3201 of the code of civil procedure did not yet provide for the survival of the action for wrongful death against the estate of the wrongdoer. The statutes were amended to so provide by Laws 1939, Ch. 233, after the decision in the Wright case.

The plaintiff in the Wright case sought to maintain an action for wrongful death despite the fact of the wrongdoer’s death. Although perhaps not entirely in point, the question of the McCarthy rule was discussed in the opinion of the court, together with cases from other jurisdictions to the contrary. The court ended its resume of the authorities as follows:

“If our present question were an open one, these decisions might well be followed. But our precedents running back for half a century cannot be ignored. Moreover, our code has been revised twice since the McCarthy case was decided, and the legislature has been content to let the law stand as this court has interpreted it during this long period.” (p. 210)

Now, some eighty-two years after the McCarthy decision, some sixty-two years after the Martin decision, and twenty-seven years after the Wright case, the majority of the court feels bound by the rule of stare decisis and adheres to the opinions of Chief Justices Johnston and Dawson to the effect that if the McCarthy rule is to be changed, it should be done by an act of the legislature.

The order of the trial court striking the first cause of action from plaintiff’s petition in the court below must be affirmed. It is so ordered.