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Thompson v. Wing8/31/1994
titled the party injured to maintain an action and recover damages" in respect thereof; and this must mean that he might immediately before his death have maintained an action, which, if he had already recovered or accepted compensation, he could not do." (Emphasis added.) Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law (12 Ed.1923) 70.
3 The facts in Van Alstine and Robinette are similar to the facts in the present case, but the cases are not directly on point because the decedents each held a claim immediately before their death. Nevertheless, the reasoning in Van Alstine and Robinette applies to the present case.
The decedent in Van Alstine had commenced an action before her death for injuries sustained in a railway accident. She died before the action could be resolved, and her administrator continued it under the survival statute. The administrator later recovered a judgment from the defendant, and the defendant, having satisfied the judgment, argued that the administrator was estopped from further prosecuting a pending wrongful death action. We disagreed, holding that the administrator, may continue to prosecute the wrongful death action. We based our decision on the view that the action is independent from the decedent's personal injury action.
In Robinette, the administrator filed a survival action and, concurrently, a wrongful death action for the death of the decedent in an automobile accident. The survival action was heard first, and the jury returned a verdict in favor of the defendant. The defendant asserted this verdict as an additional defense in the wrongful death action. We held that the judgment in the survival action, even though adverse to the administrator, did not bar prosecution of the wrongful death action. We again reasoned that a wrongful death action is not the same as a personal injury action.
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