Judge Kenna and I regret that we cannot concur in the opinion and decision of the court.
The first West Virginia statute authorizing recovery of damages for death by wrongful act provided that the recovery, which was limited to $5,000.00, should be "for the exclusivebenefit of the widow and next of kin." (Acts 1863, ch. 98, sec. 2.) Under this statute, it was held (B. O. R. R. Co. v.Gettle, 3 W. Va. 376) that the failure of a declaration to allege that the decedent had a widow or next of kin rendered it demurrable, the case emphasizing that under the then statute no action would lie unless the plaintiff showed that there was a widow or next of kin. Thereafter (Code, 1868, ch. 103, sec. 6, *Page 326 effective April 1, 1869), the statute was changed. It was made to read that the recovery "shall be distributed to the partiesand in the proportions provided by law in relation to thedistribution of personal estates left by persons dyingintestate." (Italics supplied in each instance above.) The statute so remains to this day. Code, 55-7-6. Why was the original statute changed? Obviously, because the attention of the legislature had by this court been called to the requirement of the former act that the plaintiff allege as facts indispensable to his recovery that there was a widow or next of kin. The legislature intended that this should not be required. Evidently it wished entirely to obviate the necessity of such allegation, and not merely to shift the burden of proof.
This court in Madden's Adm'r v. C. O. Railway Co., 28 W. Va. 610, 57 Am. Rep. 695, and Searles v. Railway Co., 32 W. Va. 370,9 S.E. 248, has held that under the statute as amended, the rule of pleading announced in the Gettle case is no longer applicable. In the Madden case, the declaration failed to allege that there were persons living who were entitled to the recovery under the laws of intestacy. The court held that the declaration was not demurrable. In the Searles case, the widow and children of the decedent were named in the declaration. Evidently this was in order to meet the requirement laid down in the Gettle case (3 W. Va. 376). The court held the averment to be simply surplusage.
Turning again to the wrongful death statute: "* * * the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relationto the distribution of personal estate left by persons dyingintestate." (Italics supplied.) What is the manner provided by law in relation to the distribution of personal estates left by persons dying intestate? The statute of descent and distribution, Code, 42-2-1, provides for the distribution of the personal estate of a person dying intestate. Section 2 of the same article, which contains only two sections, read: "To *Page 327 the State shall accrue all the personal estate of every decedent, of which there may be no other distributee." Certainly, this is one of the ways "provided by law in relation to the distribution of personal estate left by persons dying intestate."
If it is desired to construe this language (Code, 42-2-2) as "inept" and not contemplating that distribution of a recovery for death by wrongful act, although a purely statutory recovery, should be regulated by this statute to which the wrongful death statute directly refers, then, in our judgment, the court has practically construed the legislative act as not meaning what its plain, express terms indicate.
As is stated in the majority opinion, the statute for the recovery of damages for death by wrongful act is a remedial statute. As such, it should be liberally construed to achieve its known object. Certainly, the present statute was not enacted merely for the purpose of providing that a plaintiff does not have to allege and prove the existence of distributees, and yet permit the pleading of the non-existence of distributees as a matter of defense by the defendant. Such a construction would, of course, merely place the matter of distributees in the hands of the defendant as a defense, he not being in a position to know about it, and take it from the plaintiff as a matter of recovery, he being the one most likely to possess the necessary information.
A sum of money recovered for death by wrongful act is, we believe, in all respects, a part of decedent's estate, made so by our West Virginia statute, with the single exception that it is not liable for the decedent's debts.
It seems almost repellant to basic conceptions of right and justice that in any supposed case a defendant, guilty through gross negligence of causing the death of another, might come into court and, though admitting his negligence, avoid liability by a plea and proof that the victim of his negligent conduct left no surviving spouse nor blood relative. We cannot accept the soundness of such position. We are impressed that the question of no *Page 328 spouse nor kin of the deceased is none of the business of a tort-feasor. The thought prevails with us that he should face the issue on the merits, entirely without inquiry by him respecting the identity of the recipients of the recovery, if one be obtained.
If there were a problem respecting the distribution of a recovery under the wrongful death statute (for reasons above we think there is no such problem), the solution would be for the public authorities. Such enigma, if there were one, should not inure to the benefit of a tort-feasor. If adjudged guilty, let him pay. Beyond that he should have no concern.
For the reasons set forth we respectfully dissent.