Belding v. Black Hills & Ft. P. R.

Citations

• 3 S.D. 369
• 53 N.W. 750
• 1892 S.D. LEXIS 86

Syllabus

<p>1. Section 5498, Comp. Laws, which provides that, “if the life of any person * * * shall be lost, * * * the personal representative may institute suit, and recover damages in the same manner that the person might have done for any injury when death did not ensue,” is a survival statute, and the only damages recoverable under the section are such as the estate has sustained, but not for the loss of the life of the deceased.</p> <p>2. When the death of such person is alleged in the complaint to have been instantaneous with the accident causing his death, no right of action could have accrued to the deceased, because the life closed with the accident, and none could therefore accrue to his personal representative. The complaint, therefore, is fatally defective under that section.</p> <p>3. Section 5499, Comp. Laws, which provides that “if the life of any person * * * is lost or destroyed, * * * then the widow, heirs, or personal representative of the deceased shall have the right to sue * * * and recover damages for the loss or destruction of the life aforesaid,” creates a new cause of action in favor of the widow, heirs, or ■ personal representative that can only arise after the death of the party.</p> <p>4. The intention of the legislature in the passage of this section manifestly was to give to the widow the prior and exclusive right to institute the action and recover the damages under this section in case the deceased left a widow. Dr none, then that the heirs should have the prior and exclusive right to institute the action and recover the damages.</p> <p>5. It appearing from the complaint in this action that the deceased left a widow and children surviving him, no action can be maintained under the latter section by the personal representative, as the right to institute such action belongs first to the widow.</p> <p>6. The damages claimed in this action are those alleged to have been sustained by the widow and children, and not the estate. The personal repres