1. When objections not raised on appeal.
(after stating the facts). The objections that plaintiff should have sued as administrator, instead of merely denominating himself the administrator of deceased, and also that he failed to show his official character by a proper profert of his letters of administration, should have been made and insisted on by way of motion, at an earlier stage of the proceedings, and are not available now.
2. When pleading-amended to conform to proof.
At common law, no action lay for the death of a person, produced by the negligence or wrongful act of another. Now, by statute, (sections 5225 and 5226 Mansfield’s Digest) an action lies for damages growing out of the death, at the instance of the administrator, for the benefit of the widow and next of kin, and, in the absence of an administrator, at the instance of the heirs at law, for the same purpose. The suit authorized by these two sections is not for the benefit of the estate of deceased. The proceeds do not go into the hands of the legal representative, to be distributed to creditors and heirs and •others entitled under the statute of administration, but to be distributed to the widow and next of kin “in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate and the. damages are to be such as the jury in each case “may deem a fair and just compensation, with reference to pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person.”
Again, a suit for damages to person or property, which might be brought by the injured person, did not, at common law, survive to his legal representative, and if it had been instituted by the deceased in his life time, it abated at his death. Now, by statute, however, (section 5223 Mansfield’s Digest) an “action may be maintained against the wrong doers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong doer, or after his death (that of the wrong doer), against his •executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.”
In construing these several statutes together, (for they bear some relation to one another), this court, in the case of Davis v. Railway, 53 Ark. 117, said : “ The right of action, given by the latter statute (sections 5225 and 5226, Lord Campbell’s act) to the personal representative of one whose death has been caused by the ■default of another, is created by the statute, and is not a continuation of the right of action which the deceased had in his life time. * * * * * "
The right which accrued to the deceased survives to his .administrator by virtue of the former statute (section 5223, Mansfield’s Digest); the newly created right (by -section 5225) results from, and accrues on, the death of the injured party. Both actions are prosecuted in the name of the personal representative, where there is one, and may proceed pari passu, without a recovery in the one having the effect of barring a recovery in the other, because the suits are prosecuted in different rights, and the damages are given upon different principles to compensate different injuries. One is for the loss sustained by the estate and for the suffering from the personal injury in the life time of the decedent, the recovery of which goes to the benefit of the decedent’s creditors, if there are any; the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the (widow and) next of kin, occasioned by the death alone. The death is the end of the period in the one case, and the beginning in the other. In the one case the administrator sues as legal representative of the estate, for what belonged to the deceased; in the other, he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them.”
The suit at bar must be regarded as an action by the plaintiff as administrator for the benefit of the estate of the deceased ; and, viewing it as such, the complaint, which lays its damages for the death of the deceased, would be bad on demurrer; for damages for the death of decedent, when recovered, are no part of the assets of the estate, to be distributed to creditors and so forth. But as no demurrer was interposed, and since the manner of eliciting the testimony, the language of the instructions, the argument of counsel, and the verdict of the jury and judgment of the court, all go to show that the parties, the jury and the court all treated the claim of the plaintiff as one for the injury to deceased in his life time—that is to say, for the pain and suffering he endured from the moment he was stricken until the moment of his death—which was legitimate— we will also treat the case in that way, and consider the complaint as amended to correspond with the proof.
3. Negligence held to justify punitive damages.
The court is of the opinion that the evidence of negligence on the part of the defendant company, and its, servants and employees, is sufficient to authorize the verdict of the jury, and that the evidence as to pain and suffering is sufficient to justify the verdict for actual damages ; and a majority is of the opinion that there is, evidence of wanton disregard of the rights and safety of others on the part of the defendant’s employees, upon which the jury may have assessed punitive damages, as. they did.
4. Question of contributory negligence is for jury, when.
As to the defense of contributory negligence, a majority of the court is of the opinion that, whether or not the conduct of deceased in handling the broken wires was careless somewhat depends upon the object he had in so doing, and also upon his knowledge or ignorance of all the elements of danger connected therewith,, and that the jury may have found from the evidence that he was not guilty of contributory negligence, notwithstanding the warnings that were given him.
Thus, having in view the prerogative of the jury,, we do not feel justified in disturbing their verdict.
The instructions of the court, as g'iven, when taken all together, we think fairly and substantially declared the law to the jury.
The judgment is therefore affirmed.