Johnson v. McArthur , 226 Kan. 128 ( 1979 )

Prager, J.,

dissenting. I respectfully dissent. I would affirm the trial court and hold that, under the present wrongful death statute, K.S.A. 60-1901 et seq., the parents, as “heirs at law” of a deceased son, are entitled to participate in the damages awarded for his wrongful death, even though the deceased son was survived by his spouse. The majority opinion sets forth in full the provisions of our former wrongful death act (G.S. 1961 Supp. 60-3203 and G.S. 1949, 60-3204) and compares it with the present act. (K.S.A. 60-1901 et seq.) I agree that under the former act the parents of a deceased person would have been precluded from maintaining an action for wrongful death if the decedent was survived by a widow. In my judgment, however, the adoption of our present wrongful death statute, effective January 1, 1964, changed the law in that regard and the statute now permits surviving parents as “heirs at law” to participate in the apportionment of damages awarded against the tortfeasor in a wrongful death case even though the son was survived by a widow.

The majority of the court have adopted a technical interpretation of the term “heirs at law” rather than the broad interpretation of the term which, I believe, was contemplated by the legislature at the time the statute was amended. The changes made by the adoption of the new statute are significant and should be briefly reviewed. These changes are summarized in Frost v. Hardin, 1 Kan. App. 2d 464, 571 P.2d 11 (1977), approved and adopted 224 Kan. 12, 577 P.2d 1172 (1978), which is discussed in the majority opinion. Under the former act a wrongful death action had to be brought by the personal representative, if there was one. If there was none, it could be brought by the widow. If there was no widow, only then could the action be brought by other blood relatives of the deceased. The present statute declares without equivocation that a wrongful death action may be brought by any one of the heirs at law who sustained a loss. Under the former act, the action had to be brought for the exclusive benefit of the surviving spouse and children, if any, and if none survived, for the next of kin. Under the new act, the action is brought for the benefit of all of the heirs who sustained a loss. The third distinction between the old and new statutes involves the distribution of the recovery. Under the old statute, any recovery had to be distributed according to the statute governing personal property in cases of intestacy. Under the new statute, distribution is to be made in proportion to the loss sustained by each of the heirs rather than under the former intestacy formula.

A dispute as to the effect of these changes is what has brought about the present controversy. The answer to our problem lies in the interpretation to be given the term “heirs at law” as used in K.S.A. 60-1902, 60-1904, and 60-1905. The difficulty arises because the word “heirs” is often used in a broad or popular sense as well as in a technical sense. The word “heir or heirs” as used in the broad or popular sense, in contrast with the strict technical sense, is not restricted to those who in fact acquire property by right of descent. The common concept of the term is far broader and more inclusive, as descriptive of a class of persons who may by law inherit or who are capable of inheriting. Egilbert v. Hall, 44 Cal. App. 2d 305, 112 P.2d 291 (1941); Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 50 N.E.2d 778 (1943); West v. Glisson, 184 S.W. 1042 (Tex. Civ. App. 1916). The word “heirs” is often employed to denote a person who may receive property, either personal or real, by right of blood relationship. Matter of James, 80 N.Y. Sup. Ct. 371, 30 N.Y.S. 1 (1894); Adams v. Akerlund, 168 Ill. 632, 48 N.E. 454 (1897); Beals v. State, 139 Wis. 544, 559, 121 N.W. 347 (1909). As used in this broad sense, the word “heir” means a blood relative who may inherit under the law.

As used in the technical sense, the term signifies one who in fact succeeds to the estate of a deceased person in case of intestacy. The technical interpretation is applied in the administration of a decedent’s estate under our probate code. As noted above, under the old wrongful death law, an action had to be brought for the exclusive benefit of the surviving spouse and children, if any, or next of kin. I think it significant that the legislature, in amending the statute in 1964, deleted the term “next of kin” and used instead the term “all heirs known to have sustained a loss.” As noted above, the old law also provided that the next of kin share in the award of damages in the same proportion as they shared in the deceased’s estate. The new statute changed the method of distribution and directed that the total recovery be proportioned among the “heirs at law,” not according to their intestate share, but according to their actual loss. It seems clear to me that it was the intent of the legislature, by the enactment of the present wrongful death act, to require an apportionment of the damages to the loss sustained by each heir. As pointed out in Frost, the priorities in classes of relatives who were permitted to recover in the event of wrongful death were abolished. Such a result is also suggested by Professor Casad in his logical analysis of the new wrongful death statute in A Commentary on the Kansas Wrongful Death Act, 13 Kan. L. Rev. 515, 516-518 (1965).

Appellate courts in Michigan and Minnesota have interpreted their wrongful death acts in the manner suggested in this dissent. In MacDonald v. Quimby, 350 Mich. 21, 85 N.W.2d 157 (1957), the wrongful death statute provided (1) that the action was to be brought by the personal representative, (2) that the persons entitled to damages were those of the class entitled to inherit had deceased died intestate, and (3) that the distribution of recovery was to be to the “surviving spouse and next of kin” who suffered injury in proportion thereto. The action was brought by the surviving spouse on behalf of herself and the children of the decedent; the dependent mother of the deceased sought to intervene. In determining that the decedent’s mother could share in the damages recovered, the court rejected a contention that “heirs at law” and “next of kin” were synonymous. The court stated:

“The petitioning mother was of a class who would be entitled to inherit the personal property of the deceased had he died intestate. The fact that she would not inherit if he died intestate leaving a wife and children would not eliminate her from that class.” (p. 32.)

The court held the dependent mother could intervene in the wrongful death action.

In Martz v. Revier, 284 Minn. 166, 170 N.W.2d 83 (1969), the new wrongful death act allowed for recovery by the surviving spouse and next of kin, proportionate to the pecuniary loss. The prior Minnesota statute had provided for distribution of damages to the spouse and next of kin, the same as by intestacy. The question presented was whether surviving minor brothers and sisters could recover losses where there was a surviving, but disqualified father. The court followed the rationale of the Michigan case (MacDonald) and held that the wrongful death act was no longergeared to the intestacy statute, and, thus, the survival of a preferred beneficiary did not cancel out the rights of other next of kin (blood relatives) to share in the damages received in the wrongful death action. The court noted that other jurisdictions were split on the interrelationship of wrongful death statutes and statutes governing descent and distribution.

In In re Appointment of Trustee for Heirs of Larsen, 306 Minn. 364, 237 N.W.2d 371 (1975), the Minnesota statute provided that a wrongful death action was to be brought by the surviving spouse or one of the next of kin. It was contended that the children of the deceased were the only next of kin and that the deceased’s mother had no right to petition. The court held that “next of kin” in the wrongful death act was not synonymous with “heirs at law.” Since the mother was a next of kin and the statute provided no preference among next of kin, she had the right to petition and participate in the recovery.

The injustice of the decision of the majority is well illustrated in the present case. The parents of the deceased have alleged in their petition that they incurred the cost of the funeral expenses to bury their son, Rex, in the amount of $2500. By virtue of the holding of the majority, they are left wholly without a remedy in spite of the fact that K.S.A. 60-1904 specifically includes the recovery of funeral expenses among the elements of damages recoverable in a wrongful death action. In my judgment, the legislature enacted our present wrongful death act to correct certain injustices which had existed under the former act. The legislative purpose obviously was to expand the right of recovery for wrongful death to include any blood relatives of the deceased who suffered loss as the result of the wrongful death. What else could the legislature have had in mind?

The new statute being remedial in nature should be liberally construed to achieve the legislative purpose. The majority, by narrowly construing the term “heirs at law” in the wrongful death act, have eliminated the primary benefits which the legislature sought to obtain by the statutory changes. For these reasons I cannot, in good conscience, join in the majority opinion in this case.

Fromme, J., joins in the foregoing dissenting opinion.