delivered the following additional dissenting opinion, November 16, 1898:
Since the filing- of my dissenting opinion of June 15. 1898, a petition for rehearing has been considered and overruled by the court. The majority opinion has, however, been modified by striking therefrom the following: “This entirely leaves out of view the fact that deceased necessarily applied a certain portion of the money earned by him to his own support.” This modification of *488the opinion, however, leaves the majority opinion open to the construction that damage to the estate of the decedent is all that can be recovered. In other words that no recovery can be had, beyond the number of dollars that the decedent would earn over and above his necessary expenses of living, and entirely leaves out of view any damages resulting to any person for the loss of the society, or personal care or attention of the deceased. Such a construction is not, as I think, authorized by the language used in the Constitution, nor supported by reason, nor humanity. There can be no damage to the estate except in dollars, for the only meaning that can properly be attached to estate is money or property.
Section 241 of the Constitution reads as follows: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly shall provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person.”
• It will be seen from the foregoing provision that the Constitution uses the term “in every such case, damages may be recovered for such death.” But if it be true that only the damage to the estate can be recovered then it follows that in many cases no damages can be recovered, because the injured party would be incapable of adding anything *489to his estate; while in many other cases he or she could add nothing in excess of what was necessary for his or her support, and thus the decision of the court would in effect destroy a plain provision of the Constitution. It will be further seen from the provision of the Constitution that it was not intended by the framers of the Constitution that the damages should constitute necessarily any part of the estate of the decedent, because it is provided that the General Assembly may provide how the recovery shall go, and to whom belong, with the further provision that until such provision is made that the damages shall form part of the estate of the deceased person, the latter provision evidently being inserted to prevent confusion until the legislature acted. It seems clear to me that the rule announced in the majority opinion is in conflict with the plain meaning of the Constitution, and also inequitable; because in many instances the survivor would not be seriously injured except on account of the loss of the society of the decedent, but would nevertheless be entitled to have a large judgment. For instance, a judge of the Supreme Court of the United States earns at least $10,000 a year for life, and $2,000 for personal expenses, I take it, would be a very liberal allowance, and if his expectation of life was fifteen years the damage to his estate by the destruction of his life could not be less than $120,000; while another man might not be able to earn more than one dollar per day, and more then one-half of that would be required for his support, and his expectation of life might be the same while the recovery for his death could not exceed $2,500, and yet as a matter of fact his death would entail more *490want and suffering upon those depending upon him thau those in the former case. Again, many railroad presidents, and presidents of other large establishments receive $25-000 per year, and it is liberal to allow $2,000. per year for their personal expenses, and applying the same rule of damages the recovery for the death of such a one would be $345,000. It is perfectly clear that the estate would be damaged to that extent, unless we should assume that he would not be able all his life to earn such a salary. Similar results would attend the recovery in the case of death of great number of officers who hold during life. It seems to me that the framers of the constitution never intended any such results. The parties most interested in the life of another are the wife, husband, parent and child, and evidently the framers of the constitution intended that they should be entitled to recover such damages as they sustained, and as before indicated the loss of society and personal protection is the chief element of damage. Can it be that the framers of the constitution intended that the husband or wife, although incapable of earning a dollar per month, might be killed by the negligence of some person, and the survivor be unable to recover any damages? I think not.
It seems clear to me that the legislature, which met soon after the adoption of the constitution, understood the constitutional provision as I now understand it. Section 6 of the Kentucky Statutes provided for the enforcement of the constitutional provisions, and thereby discharged the duty imposed upon it. Said section reads as follows: “Whenever the death of a person shall *491result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents'or servants, causing the same, and when the act is willful or the negligence is gross, punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased. The amount recovered, less funeral expenses and the cost of administration, and such costs about the recovery, including attorney fees as are not included in the recovery from the defendant, shall be for .the benefit of and go to the kindred of the deceased in the following order, viz: 1. If the deceased leaves a widow or husband, and no children or their descendants, then the whole to such widow or husband. 2. If the deceased leaves either a widow and children or husband and children, then one-half to such widow or husband and the other one-half to the children of the deceased. 3. If the deceased leaves a child or •children, but no widow or husband, then the whole to such •child or children. If the deceased leaves no widow, husband or child, then such recovery shall pass to the mother and father of deceased, one moiety each, if both be living; if the mother be dead and the father be living, the whole thereof shall pass to the father; and if the father be dead, and the mother living, the whole thereof shall go the| mother; and if both father and mother be dead, then the, whole of the recovery shall beome a part of the personal «state of the deceased; and after the payment of his debts, the remainder, if any, shall pass to his kindred more re*492mote than those above named, as is directed by the general, law on descent and distribution.”
It will be seen from the section supra that after the-payment of funeral expenses and the cost of administration, and such costs about the recovery, including attorney fees as are not included in the recovery from the defendant, the amount recovered shall go first to the widow or husband in the event that the deceased left no children,, or descendants; but if the deceased leaves a widow and. children, or husband and children then one-half to such widow or husband, and the other to the children of the deceased. Further provisions is made in the event of the deceased leaving neither descendant, widow or husband that the recovery shall pass to the mother and father, and in. the event that the deceased leaves none of the relatives, mentioned it is further provided that the recovery shall become a part of the personal estate of the deceased;, and after the payment of his debts, the remainder, if any,, shall pass to his kindred under the general law of descent and distribution.
Thus it will be seen that the legislature utterly failed, to recognize or treat the damages as a part of the personal estate of the decedent in the common acceptation of the term. It is further provided in the section supra that, when the act is willful or the negligence gross punitive damages may be recovered. If the true meaning of the constitution is that the damage to the estate of the decedent is all that can be recovered then it must follow that no-punitive damages can in any case be recovered, for it is. impossible for the willfulness or grossness of the act to> *493increase the damage to the estate. When a party is dead his capacity to earn money is effectually and entirely destroyed, and the damage to his estate can neither be increased or decreased by the character of the act causing his death. The mental anguish to the widow, husband, parent and children may be increased because of the grossness or willfulness of the act, and indeed such would always be the case, but the character of the act can in no wise affect the estate.
The court below in the case at bar authorized the jury to find for the plaintiff the damages sustained by the widow and children, not exceeding the amount sued for, which instruction is condemned by the majority opinion. It is suggested that they are not parties to the suit, but we have seen from the statute heretofore quoted that they were the chief beneficiaries, or in other words entitled to most of the recovery, and in my opinion the prime object of the provision in the constitution was for the benefit of the surviving widow, husband, parent and children. Some quotations from decisions of other states, are embodied in the majority opinion in support of the opinion. It does not appear whether or not the decisions referred to were rendered under such provisions as we find in our organic and statutory law; I therefore assume that such was not the case, but if my assumption is wrong I still have no hesitancy in holding that such opinions are radically wrong.
I think it was the intention of the framers of the constitution that all damages that a survivor sustained by the loss of life as specified in the constitution should be recov*494ered, and that it was the intention that the loss of society, care and protection reasonably given and expected to be given by the decedent should be considered in estimating the damages, and therefore the plaintiff in such case should be allowed to prove whether the decedent left a companion, or children or parents, and that the damages suffered by such bereft relative should be recoverable. Such a rule would be fair, reasonable, and humane. Where there are no such relatives as those mentioned in the statute a money consideration, or in other words the damages to the estate would be the just and proper criterion, for as a rule a creditor or distant relative would sustain no damage except to the extent that the death of the party lessens the amount of money which he would leave for distribution.
It is difficult to understand how the estate of decedent is to be compensated for damages caused by the destruction of decedent’s power to earn money. Estate is property. If the decedent owned an estate at the time of his death the same remains. Estate,is not a person capable of suing or being sued, nor can it be affected by sorrow or joy; hence I conclude that it cannot suffer damages nor be compensated. But I can understand how a husband or wife, parent or child may be damaged by the death of a relative or companion, and I can understand how some compensation might be made, and it seems to me that the constitution has provided that such injured party may be compensated for not only the power of decedent to earn money, but for the loss of the society of decedent, which is often more valuable and desirable than the money that *495he could earn. Take the case of a wife and children who have sufficient estate to enable them to supply every want or demand, the death of the head of the family would, so far as money is concerned, be little or no damage, although he was earning $10,000 per year, but the loss of the society and protecting care of the decedent would be very great damage to the wife and children, and for such damage it seems to me they are entitled to recover. On the other-hand, I can imagine the case of an old and infirm couple who have accumulated enough to live upon, but who are now unable to earn a dollar. It is possible, if not probable, that the wife may lose her life by the negligence or wrongful act of some one, and yet as she has no capacity to earn money no recovery could be had under the doctrine of the majority opinion, as I understand it; yet it can not be denied that the damage to the bereaved husband would be very great. It appears clear to me that the constitution says that the husband is entitled to damages for the loss of his companion, and that enjoyment of her company is one of the elements of damages for which a recovery is allowed. The law is not harsh — if the killing be not the result of negligence or wrongful act no recovery can be had. If it be the result of negligence or wrongful act, the wrong doer should make reparation in all cases.
If no recovery can be had except for the destruction of the power of the decedent to earn money less the necessary cost of living then there can be but little recovery in the great majority of cases, and in many cases there can be *496no recovery at all, while in few cases the recovery must be immense.
Section 54 of the constitution provides that: “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”
It appears to me that the majority opinion limits the recovery provided for by excluding one of the elements of damage, viz: loss of company, society and association, which to my mind is usually the chief damage sustained by the party damaged.
The importance of the questions involved is my only, apology for this earnest but respectful dissent.