Kimberly v. Ledbetter , 183 Kan. 644 ( 1958 )

Price, J.,

dissenting: I adhere to my dissent in Joy v. Brown, 173 Kan. 833, 252 P. 2d 889.

Under the wrongful-death statute (G. S. 1957 Supp. 60-3203) an action may be maintained by the next of kin only in cases where the deceased, had death not occurred, could have maintained an action against the alleged wrongdoer.

The deceased, having consented to and participated in the illegal and unlawful act, could not have maintained an action for the consequences of such act, even though negligently performed, had she lived. Such being the case, her next of kin cannot maintain this action.

In my opinion the demurrer to the petition should have been sustained.