Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

that a person must have a legal claim upon another for support in order to sustain a pecuniary loss by reason of the latter's death. Under Lord Campbell's act, the original legislation under which damages were recoverable for death caused by negligence, it was provided that the action should be for the benefit of the wife, husband, parent, child, grandparent, step-parent, grandchild and step-child. None of those enumerated in the Campbell act had a legal claim for support upon the decedent, except the widow, child or parent of an infant.

In the case of Ill. Cent. R. R. Co. v. Barren, 5 Wallace, 90, which was a case brought by the administrator of a person who left neither wife nor child, the Supreme Court said: "It has been suggested frequently in cases under these acts, for they are found in several of the States, and the sug gestion is very much urged in this case, that the widow and the next of kin are not entitled to recover any damage unless it is shown that they had a legal claim on the deceased, if he had survived, for support. The only relation, mentioned in the statute, to the deceased essential to the maintenance of the action is that of widow or next of kin; to say they must have a legal claim on him for support would be an interpolation in the statute changing the fair import of its terms, and hence not warranted. This construction, we believe, has been rejected by every court before which the question has been made."

*

"If the person injured had survived and recovered, he would have added so much to his personal estate, which the law on his death, if intestate, would have passed to his wife and next of kin; in case of his death by the injury the equiv

Owensboro & Nashville Ry. Co. v. Barclay's Adm

aient is given by a suit in the name of his personal representative."

And in Bush v. Cork R. R. Co., C. & J., 48, it was said:

* "That damages for the death must be given in reference solely to pecuniary loss, which, however, may be evidenced by proof of a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of life."

Moreover, this court seems to have frequently held that suits under section 1, chapter 57, General Statutes, might be maintained by the personal representative, regardless of whether there was a widow, child or other person having a legal claim upon the decedent for support. (Givens v. Ky. Cent. Ry. Co., 11 Ky. Law Rep., 452; L. & N. R. R. Co. v. Morris, 14 Ky. Law Rep., 467.)

The question of whether section 241 of the Constitution, before the enactment of section 6 of the Kentucky Statutes, authorized the recovery of any other than compensatory damages was fully considered and decided in the affirmative in L. & N. R. R. Co. v. Kelly's Admx. (100 Ky.)

But the petition averred not only the death of appellee's intestate by the gross negligence of appellant, but alleged specifically the physical and mental suffering of the intestate during the period between the accident and the death. Motions to require appellee to paragraph its petition and to elect which cause of action it would prosecute were overruled by the trial court. The instructions, moreover, authorized the jury to find not only damages for the physical and mental suffering of the intestate, but for the destruction of the intestate's power to earn money. A most ingenious argu

Owensboro & Nashville Ry. Co. v.

Barclay's Adm'r.

ment has been made by counsel for appellee to the effect that there was no misjoinder of causes of action, but that there was only one act of negligence, and that the cases upon this subject go only to the extent of requiring the plaintiff to recover in one action all that he is entitled to recover for that act. But whatever may be the logic of the question, and whatever might be our opinion were the question now submitted to us for the first time, we regard this question as so authoritatively and distinctly settled in this State that the maxim of stare decisis should be applied. At common law a cause of action existed for damages for the physical and mental suffering of the intestate between the time of his injury and his death; and by section 1, chapter 10 of the General Statutes, this cause of action survived to the personal representative. By the Constitution, as well as by statutes in force prior to its adoption (section 241), a cause of action is given to the personal representative for the damage to the estate of the decedent caused by his death. In Hansford v. Payne, 11 Bush, 382, the death was caused by negligence in filling a physician's prescription with croton oil instead of linseed oil, and suit was brought, alleging the suffering and agony, and also the death, resulting from the negligence. It was held in that case that the order dismissing the petition on the face of the pleadings was error, as a cause of action was stated, but the court said: "We do not anticipate that this ruling will (as appellees' counsel fears) enable parties to sue under the third section of the act of 1854 for the death, and also under the provisions of chapter 10 for the damages accruing anterior to the time of dissolution. A recovery of pun

Owensboro & Nashville Ry. Co. v. Barclay's Adm`r.

itive damages for the destruction of the life will certainly bar any other action for the injury or any of its consequences, and if a party elects to sue and enforce the right of action that survives to him he will not be allowed afterward to avail himself of the benefits of the punitive statute and also to recover under its provisions."

In Conner's Admr. v. Paul, 12 Bush, 144, the personal representative of Conner instituted one action for the recovery of damages for the mental and physical suffering of his intestate between the times of the injury and death, and also instituted another action for damages sustained by his death, caused by the same act. A motion was made to require him to elect which of the two he would prosecute, the motion was sustained by the circuit court and its judgment affirmed by this court. Said the court through Judge Pryor: "The party entitled to bring the action, either under the common law or under the statute, must make his election; and while the right of recovery under our statutes for willful negligence may increase the measure of the recovery, such an action is a bar to a cause of action that survived at the common law upon the same facts."

In Hackett's Admr. v. Lou., St. L. & Tex. R. R. Co., 95 Ky., 236, this court held: "Now this court has decided and settled the question that where certain acts cause death, they can not be divided so as to make two actions, one to recover for the suffering caused, and the other to recover for death. The party must elect."

In that case an amended petition averring the suffering which took place between the injury and the death was held to be a separate count, and the plaintiff was required to elect which cause of action he would prosecute.

:

Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

And in the most recent case upon this subject, L. & N. R. R. Co. v. McElwain, 98 Ky., 700, the wife having been killed by the negligence of the railroad company, the personal representative, who was the husband, recovered a judgment for damages for her death, and instituted another action in his individual capacity for damages for the loss of her society from the date the injury was inflicted until her death. In that case, after a careful review of the authorities, the court, through Judge Paynter, said: "It was not the intention of the Legislature to multiply cases. The husband must accept the benefits which the statute secures to him in lieu of those he possessed at common law."

Without further elaboration or argument, we conclude the rule to be established that, in such cases, the party complaining is restricted to the common-law cause of action or the statutory cause, and must elect which one he will pursue.

This being our view, it is unnecessary to consider the errors alleged in the instructions given, which will certainly not be given upon a retrial.

For the reasons given the judgment is reversed and the cause remanded, with directions to award the appellant a new trial, and for further proceedings consistent with this opinion.