dissenting: The testimony in this case established the death of Robert E. Ingram to have occurred almost instantaneously following the accident. One witness who observed the accident and attempted to free Ingram from the cab of the truck testified the decedent was moving around inside the cab of the truck and screaming for three to four minutes. Other witnesses who reached the truck and saw the explosion said Ingram succumbed to the flames after one to two minutes.
In its brief the appellant does not contend the damages awarded in the survival action for the decedent’s pain and suffering amount to a windfall or double recovery to the plaintiff. The appellant merely asserts the plaintiff s total damages (for the wrongful death and survival actions combined) are so excessive they demonstrate passion and prejudice by the jury as a matter of law so that a remittitur should be ordered. The appellant bases this on the evidence presented to the jury consisting of pictures of the decedent’s charred body, the testimony of witnesses describing the decedent’s screams of agony prior to his death, and the coroner’s report indicating the cause of death was severe burns to the face and head.
Prior Kansas cases have not addressed the inequity which results when the heirs of a decedent are permitted to assert both a claim for wrongful death (for loss of support, et cetera) and a survival action on behalf of the decedent (for pain and suffering experienced prior to death) in situations presented by the facts of this case. Most states by statute allow both actions to be brought, including Kansas. See K.S.A. 60-1801 et seq. (survival action) and K.S.A. 60-1901 et seq. (wrongful death action). Most courts which have addressed the issue have held the two actions do not allow a double recovery to the heirs, as the survival action compensates the decedent for the injuries for which he could have recovered had he survived, whereas the wrongful death action compensates the heirs for such things as loss of support, companionship and comfort. See 22 Am. Jur. 2d, Damages §126; 3 Damages in Tort Actions §20.12 (1982). In most jurisdictions *302recovery for pain and suffering is precluded where death is instantaneous or the victim is unconscious from the time the injury occurred until death. 3 Damages in Tort Actions §21.11 [1, 2]; 22 Am. Jur. 2d, Damages §128.
Under some statutory schemes the potential for double recovery by the heirs is limited. A number of state survival statutes specifically exclude recovery for the decedent’s pain and suffering. See Ariz. Rev. Stat. Ann. §14-3110 (1975); Cal. Probate Code §573 (West 1983 Supp.); Colo. Rev. Stat. §13-20-101 (1973); Wash. Rev. Code §4.20.046 (1981). The reason for the exclusion is the belief that since the decedent alone endured the pain and can no longer benefit from the award, there is no reason for the survivors to be enriched as a result of the decedent’s suffering. 3 Damages in Tort Actions §21.11[5] (1982). At least one other state has enacted a statute which requires one action to be brought to recover damages for the pain suffered by the decedent as well as the damages suffered by the heirs as a result of the death, to ensure that “there shall be only one recovery for the same injury.” See Me. Rev. Stat. Ann. tit. 18-A, § 2-804(c) (1981).
The basic principle of damages is to make a party whole by putting that party back in the same position as it was prior to the injury, not by granting a windfall. Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 679, 588 P.2d 463 (1978). See also 25 C.J.S., Damages §3; Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 401, 507 P.2d 189 (1973). In assessing damages, it is within the discretion of the trial court to apply equitable standards in order that the plaintiff may be made whole. Seaman U.S.D. No. 345 v. Casson Constr. Co., 3 Kan. App. 2d 289, Syl. ¶ 2, 594 P.2d 241 (1979). Where the decedent suffers severe injuries which result in immediate or almost instantaneous death, it is absurd to maintain the decedent may be “made whole” when compensated for the pain and suffering which he experienced prior to death. The decedent can no longer benefit from an award of damages. Recovery for such damages by the heirs, under the guise of recovering on behalf of the decedent, results solely in a windfall to the heirs, as they are entitled to maintain an action in their own right for, among other things, “mental anguish, suffering, or bereavement; loss of society, companionship, comfort or protection,” and loss of support under K.S.A. 60-1904. In other words, as here, the heirs are *303“made whole” by being fully compensated for the damages they suffered in their wrongful death action.
Awards for damages in survival actions should be limited whenever possible. As stated in 25 C.J.S., Damages §3:
“As a general rule, a person who has sustained loss or injury may receive no more than just compensation for the loss or injury sustained. He is not entitled to be made more than whole, and he may not recover from all sources an amount in excess of the damages sustained, or be put in a better condition than he would have been had the wrong not been committed. . . .
“It is generally recognized that there can be only one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury. A plaintiff may not recover damages twice for the same injury simply because he has two legal theories . . . pp. 627-29.
In the instant case the heirs of the decedent rightfully recovered $360,000 for the decedent’s future lost earnings and for their nonpecuniary losses resulting from the death. They were therefore made whole in their cause of action. The decedent’s heirs should not be permitted to benefit from the pain and suffering experienced by the decedent in this case prior to his death, where the decedent himself could not be made whole by the recovery of those damages. The award of such damages merely results in a windfall or double recovery for the heirs of the decedent for an injury resulting in almost instantaneous death arising out of the appellant’s single act of wrongdoing.
My conscience is shocked by a judgment in this case which permits the heirs to benefit by double recovery for a single act of wrongdoing. It is respectfully submitted that the damage award for $350,000 in the survival action should be set aside. Absent court action to control the administration of justice on the facts and circumstances presented by this case, it is suggested the legislature take immediate action to limit recovery.