Stang v. Hertz Corporation , 81 N.M. 69 ( 1970 )

OPINION

WOOD, Judge.

Catherine Lavan died from injuries received in an automobile accident. Plaintiff, her personal representative, sought damages for the value of her life, for her conscious pain and suffering from the injury until death, for medical and related care of decedent and the reasonable expense of decedent’s funeral and burial. On the basis of stipulated facts, the trial court ruled the personal representative could not recover any of the foregoing items of damage. Plaintiff appeals from the order dismissing her complaint. No issue is presented concerning the expenses of the funeral and burial. We decide whether the other items of damage may be recovered (if liability is established — a point not involved in this appeal). Our decision answers two questions: (1) If there is no pecuniary injury to the statutory beneficiaries, may there be a recovery for the wrongful death of decedent? (2) Under the facts of this case, may the personal representative recover for decedent’s conscious pain and suffering and medical and related care from the injury until death? We answer “yes” to both questions.

Recovery of damages absent pecuniary injury to a statutory beneficiary.

Catherine Lavan was a college graduate and experienced in teaching and school administration. At the time of her death she was serving as director of a church school; this position is similar to that of “principal” in a public school. If called as a witness, the personnel director of the Albuquerque Public Schools would testify that decedent qualified for employment in that public school system “ * * * at an annual gross salary of $11,668 as a grade school principal, together with fringe benefits amounting to approximately 22% of said gross salary, * * * ”

However, decedent was a nun; a member of the Sisters of Charity. She had taken the simple, but perpetual, vow of poverty. Her statutory beneficiaries under § 22-20-3, N.M.S.A.1953 are brothers and sisters. It is stipulated:

“There is no substantial evidence from which could be found that the statutory beneficiaries * * * would have had, on the date of their sister’s death, any reasonable expectancy of pecuniary benefit from her continued life.”

Section 22-20-3, supra, states that damages may be awarded “ * * * taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, * * “Pecuniary injury” means a reasonable expectation of pecuniary benefits from the continued life of the deceased. Whitmer v. El Paso & S.W. Co., 201 F. 193 (5th Cir. 1912). See Varney II (Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966)) ; Mares v. New Mexico Public Service Co., 42 N.M. 473, 82 P.2d 257 (1938) [overruled on other grounds, Montgomery v. Vigil, 65 N.M. 107, 332 P.2d 1023 (1958)].

The stipulated fact, then, is that there was no pecuniary injury to the statutory beneficiaries as a result of their sister’s death. If a pecuniary injury to brothers and sisters could be presumed, a point we do not decide, that presumption no longer existed when it was stipulated that in fact there was no pecuniary injury. See Payne v. Tuozzoli, 80 N.M. 214, 453 P.2d 384 (Ct.App.1969) and cases therein cited.

Because there was no pecuniary injury to the statutory beneficiaries, the trial court held there could be no recovery for the death of decedent. Plaintiff assumes there must be a pecuniary injury but contends the pecuniary injury “ * * * is measured by reference to the deceased, not by reference to beneficiaries.” Defendant Firestone (Firestone Tire & Rubber Company) asserts damages for wrongful death are not recoverable if there is no pecuniary injury to at least one statutory beneficiary. Compare Brock v. Harkins, 80 N.M. 596, 458 P.2d 848 (Ct.App.1969), cert. denied 80 N.M. 607, 458 P.2d 859 (1969). Defendant Hertz (Hertz Corporation) takes the position that in the absence of pecuniary injury to a statutory beneficiary there can be no recovery of substantial damages. Hertz’ position recognizes a right to sue for wrongful death but would prohibit recovery of other than nominal damages where there is no pecuniary injury to a statutory beneficiary. Apparent support for each of these views may be found in language of our New Mexico Supreme Court decisions.

We do not agree with any of these views. Section 22-20-3, supra, clearly permits the fact finder to consider the pecuniary injury to the statutory beneficiaries in awarding compensatory damages for wrongful death. It does not, as plaintiff contends, refer to the pecuniary injury of the deceased. It does not, as defendants contend, say that no damages (or no substantial damages) may he recovered if a statutory beneficiary has not suffered pecuniary injury as a result of the death.

Pecuniary injury to a statutory beneficiary is an element to be considered in awarding damages under § 22-20-3, supra. Its absence (or presence) is to be considered in arriving at the amount of the award. Proof of pecuniary injury is not a prerequisite to recovery of damages for wrongful death. Pecuniary injury to the statutory beneficiary is proved so that the fact finder may consider this injury in awarding damages for the wrongful death. Damages for the wrongful death may be recovered by proof of the present worth of life of decedent to the decedent’s estate. We reach these views by considering the history, content and intent of our statute and by considering the court decisions interpreting our statute.

The Statute.

According to Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938), at common law, no cause of action for personal injuries which resulted in death survived in favor of the personal representative of the deceased. The right to recover damages for wrongful death is entirely statutory. Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963); see Tauch v. Ferguson-Steere Motor Co., 62 N.M. 429, 312 P.2d 83 (1957); Romero v. A. T. & S. F. Ry., 11 N.M. 679, 72 P. 37 (1903).

Laws 1882, ch. 61, §§ 1-3 provided for the recovery of damages for wrongful death. Section 1 pertained to death caused by common carrier. For present law, see § 22-20-4, N.M.S.A.1953 (Supp.1969). Section 2 pertained to death caused by other than common carrier. Section 3 stated that the jury might award damages:

“ * * * not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled. * * * ”

This 1882 statute was taken from Missouri. Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936). The inference in the Missouri cases discussed in Hogsett v. Hanna, supra, is that the wording of our 1882 law permitted, generally, a recovery of damages for wrongful death. Nevertheless, with little if any consideration of this language, precedent indicates that the language quoted from § 3 (“with reference to the necessary injury”) limited recovery to the pecuniary injury suffered by the statutory beneficiary entitled to sue. See dissent of Justice Coors in Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274 (1952); Acton v. Shields, 386 S.W.2d 363 (Mo.1965) ; Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). We proceed on the basis that under the 1882 statute there could be no recovery of damages for wrongful death unless a statutory beneficiary suffered a pecuniary injury as a result of the death.

The 1882 statute was amended by Laws 1891, ch. 49. Section 1 of the 1891 Act carried forward the substance of § 2 of the 1882 Act. Its present form, § 22-20-1, N.M.S.A.1953, reads:

“Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.”

Section 2 of the 1891 Act made substantial revisions in the 1882 law. Among other things, the 1891 Act provided that the statutory action was to be brought in the name of the personal representative rather than in the name of specified beneficiaries. It deleted the phrase “ * * with reference to the necessary injury resulting from such death, * * * ’ ” and substituted “ * * * taking into consideration the pecuniary injury or injuries resulting from such death. * * * ” It named various beneficiaries and, significantly in our opinion, added: “ * * ■ * if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.” The pertinent portion of its present form, § 22-20-3, supra, reads:

“Every such action as mentioned in section 1821 [22-20-1] shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. * * *

“* * * [I] f there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.”

The adoption of an amendment is evidence of an intention by the Legislature to change the provisions of the original law. Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965). The foregoing shows that the 1891 amendment made changes. What is the meaning of those changes? Under the 1882 law pecuniary-injury was a prerequisite to a recovery because' damages were to be awarded “with reference to the necessary injury” to the parties entitled to sue. Under the 1891 law pecuniary injury is not a prerequisite to a recovery because a judgment may be obtained under that Act even in the absence of statutory beneficiaries and thus in the absence of statutory beneficiaries suffering pecuniary injury. Under the 1891 law, the fact (or absence) of pecuniary injury is a matter to be considered in arriving at the damage award but the existence of a pecuniary injury is no longer the sine qua non for an award.

If, as in this case, there is no pecuniary injury to a statutory beneficiary, what language authorizes a recovery for wrongful death? Section 22-20-1, supra, provides that if a party could have recovered damages if death had not occurred “ * * * in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.” Section 22-20-3, supra, refers to “every such action” mentioned in § 22-20-1, supra. This language authorizes recovery of damages for wrongful death.

Our view of the content of our statutes, §§ 22-20-1 and 22-20-3, supra, after the 1891 amendment, is that damages are recoverable for wrongful death if damages could have been recovered if there had been no death. However, in fixing the amount of the damage, the pecuniary injury (or lack of it) to the statutory beneficiary is to be considered.

This view is consistent with the following rules of statutory construction:

(a)The fundamental rule is that we must ascertain and give effect to the intention of the Legislature. State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966). The purpose of the Legislature was, at least in part, to make negligence that causes death costly to the wrongdoer. Trujillo v. Prince, 42 N. M. 337, 78 P.2d 145 (1938); Whitmer v. El Paso & S.W. Co., supra.

(b) We must consider the' language of the Act as a whole. State ex rel. Clinton Realty Co. v. Scarborough, 78 N.M. 132, 429 P.2d 330 (1967). We have done so. We have considered the reference to pecuniary injury but have also considered the reference in § 22-20-1, supra, to liability “in every such case.”

(c) The statute must be construed so that no word and no part of the statute is rendered surplusage or superfluous. Cromer v. J. W. Jones Construction Co., 79 N.M. 179, 441 P.2d 219 (Ct.App.1968). To hold that pecuniary injury “ * * * to the surviving party or parties entitled to the judgment * * * ” is a prerequisite to a recovery of damages for wrongful death would make superfluous the provision allowing recovery where there are no such surviving parties.

The cases.

At least three New Mexico decisions state that the measure of damages for wrongful death is the worth of life of decedent to the estate. This statement is almost immediately followed by a statement indicating the measure of damages is the pecuniary injury to the statutory beneficiaries. Varney II, supra, Duncan v. Madrid, 44 N.M. 249, 101 P.2d 382 (1940) ; Mares v. New Mexico Public Service Co., supra. None of these cases considered the question presented in this case — whether there may be a recovery of damages for wrongful death in the absence of pecuniary injury to the statutory beneficiaries.

The question was presented, but not answered, in Varney III [Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968)]. The opinion states:

“Defendants argue that the court, on remand, failed to follow our opinion and the mandate in that it did not limit recovery to the pecuniary injuries to the surviving parties entitled to judgment, in this case decedent’s father and mother. As we understand their argument, it is essentially that the award must be limited to the amount the father and mother of decedent might reasonably have expected to receive as pecuniary benefits from the continued life of their son, an amount which would have been considerably less than was awarded on remand. That argument, however, was disposed of by the former opinion in saying:

“ ‘ * * * recovery belongs to the relative for whose benefit the suit is brought, and the right of recovery extends to those distributees named in the statute, or to those entitled under the laws of descent and distribution, in the same manner and to the same extent as is given to the wife and children of the decedent.’

“Our holding in that respect became the law of this case, and is binding upon us and the litigants upon a subsequent appeal.”

Four opinions have discussed the question presented in this case; they are evenly divided as to the result indicated. We discuss each of them.

Cerrillos Coal R. Co. v. Deserant, 9 N.M. 49, 49 P. 807 (1897) rules on at least four items of wrongful death damage. The opinion declares how the present worth of the life of deceased is to be determined. That holding has been consistently followed. Varney II, supra; Duncan v. Madrid, supra; Mares v. New Mexico Public Service Co., supra; Hogsett v. Hanna, supra. This appeal is not concerned with how present worth of life is to be measured.

Cerrillos, supra, also contained statements concerning exemplary damages and the pain and suffering of a decedent. We will refer to these in answering the second question in this appeal. In addition Cerrillos, supra, states:

“The rule in statutory actions for injuries causing death is, as shown by abundance of authority, that the damages recoverable is compensation for the pecuniary loss to the parties entitled to recovery.” [Citations omitted]

The authority cited is seven decisions from other jurisdictions. Not one of those decisions considered a statute similar to ours after the 1891 amendment, yet that amendment applied to the death involved in the Cerrillos, supra, decision. The authority cited considered statutes resembling our 1882 statute. We do not consider the above quoted language from Cerrillos, supra, to be authoritative because it did not consider the effect of the changes made in our statute by the 1891 amendment' and because it followed decisions of jurisdictions whose statutes were not similar to the New Mexico statute.

Rival v. A. T. & S. F. Ry., 62 N.M. 159, 306 P.2d 648, 64 A.L.R.2d 1098 (1957) was an action for death under the Federal Employers’ Liability Act. This opinion quotes from 25 C.J.S. Death § 26, to the effect that under most wrongful death statutes, pecuniary loss to the statutory beneficiaries is essential to the recovery of any compensation. We do not consider this statement as an authoritative interpretation of the New Mexico wrongful death statute. The opinion does not refer to our statute nor to any New Mexico decision concerning our statute.

Persuasive to us is the reasoning in the withdrawn opinion of Justice Watson in Valdez v. Azar Bros., 33 N.M. 230, 264 P. 962 (1928).¹ Justice Watson reasoned that substantial damages were recoverable without proof of pecuniary loss. Defendants contend this reasoning should not be followed because the Justice characterized our statute as a survival statute. They assert that this characterization, if correct at the time, is no longer accurate. They state that because of a 1961 'amendment (Laws 1961, ch. 202, § 1) to § 22-20-2, N.M.S.A.1953 (Supp.1969) our statute may no longer be characterized as a survival statute.

Justice Watson stated:

“ ‘If the legislature intended no more than to compensate those of the surviving kindred who had suffered pecuniary loss, the statute is ill-designed for that purpose. It does not provide for a finding by the jury as to which of the kindred have suffered loss, nor in what proportions. It does not provide for distribution of the proceeds of the judgment in proportion to the losses suffered, but, arbitrarily, according to kinship. * *

a i * * *

“ ‘These considerations lead us to conclude that our statute resembles rather those which provide for compensation to the estate than those which provide compensation for pecuniary loss to named kindred. * *

Thus, Justice Watson’s reasoning is based on the statutory language. The amendment to § 22-20-2, supra, did not change that language. The statutory language relied on by Justice Watson remains in the statute; his reasoning in connection with that language is applicable and is not weakened by arguments concerning how our statute should be characterized.

Defendants also attempt to distinguish Justice Watson’s reasoning. They refer us to the following in Justice Watson’s opinion:

“ ‘ * * * The evidence of pecuniary loss to these beneficiaries, if not wholly lacking, is very slight. * * *

“ i * * *

“ ‘ * * * We have only to determine the validity of appellants’ contention that the evidence warranted only nominal damages. This contention we must overrule, without speculation at this time as to the effect, in some other case, of the provision that the jury should consider the pecuniary injury to the party entitled to the judgment. * *

Defendants point out there was some evidence of pecuniary injury and that Justice Watson did not decide what -effect was to be given the language providing that consideration is to be given to the pecuniary injury to the statutory beneficiaries. We do not agree that defendants’ analysis provides a basis for distinguishing the reasoning of Justice Watson. Even if there was some evidence of pecuniary injury, the Justice was of the view that substantial damages were recoverable without proof of pecuniary injury. Although Justice Watson did not indicate what effect was to be given the statutory language concerning pecuniary injury, he did indicate that damages were recoverable without proof of pecuniary injury. Further, Varney II, supra, and Varney III, supra, were concerned with how pecuniary injury may be proved and thus gave effect to the pecuniary injury provisions.

Justice Watson’s reasoning was relied on in Hogsett v. Hanna, supra. That case states:

“The defendant strenuously urges that, since the court concluded that plaintiff had failed to prove any pecuniary damages to the father and mother of deceased, they being the ones shown by the evidence to be entitled to the distribution of the proceeds of any judgment obtained on account of the death of the deceased, the court erred in rendering judgment for $15,000 against the defendant. * * * ”

The opinion in Hogsett v. Hanna, supra, specifically reaffirmed that portion of Cerrillos Coal R. Co. v. Deserant, supra, which states how present worth of life is to be determined. Although Hogsett, supra, does not refer to the Cerrillos, supra, statement to the effect that the damages recoverable were for the pecuniary injury, Hogsett, supra, reaches the opposite result. Although the statutory beneficiaries had failed to prove any pecuniary injury, our Supreme Court affirmed the judgment. It did so because there was substantial evidence of the worth of the life of deceased.

Hogsett v. Hanna, supra, has not been overruled. Rather, it has been cited with approval. Varney II, supra; Duncan v. Madrid, supra. The result in Hogsett v. Hanna, supra, and the reasoning of Justice Watson in the withdrawn opinion is consistent with the statutory language and with the legislative purpose to make negligence causing death costly to the wrongdoer. Pecuniary injury to the statutory beneficiaries, or the lack of it, is an item to be considered in arriving at the damages to be awarded. See Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962). Such pecuniary injury, however, is not a condition precedent to recovery. Damages may be recovered for wrongful death without proof of pecuniary injury.

The trial court erred in holding plaintiff could not recover damages for the wrongful death of decedent.

Recovery of damages for decedent’s consciotis pain and suffering, and medical and related care, from the injury until death.

If a party could have recovered damages without there being a death, § 22-20-1, supra, provides that the defendant who would have been liable if there had been no death, “shall be liable” notwithstanding the death. The defendant is liable “in every such case.” The liability is “for damages.” This statutory language authorizes recovery for pain and suffering and for medical and related care between injury and death if they were recoverable by an injured party who did not die. An injured party may recover damages for these items. Jones v. Pollock, 72 N.M. 315, 383 P.2d 271 (1963).

Our view of the statute is contrary to Cerrillos Coal R. Co. v. Deserant, supra. There it was held that in determining damages for wrongful death nothing was to be included for the suffering or anguish of the deceased. Our view is consistent with Rival v. A. T. & S. F. Ry., supra. That opinion indicates that damages might be recovered for pain and suffering. For reasons previously stated, we do not consider either of these opinions as authoritative. The question was raised, but not decided, in Hodgkins v. Christopher, 58 N.M. 637, 274 P.2d 153 (1954).

Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961), is pertinent. That opinion states that our wrongful death statute:

“ * * * warrants the allowance to the administrator of the decedent’s damages prior to death, provided they are not the same as those for which the husband, individually, has a right of recovery.”

Kilkenny, supra, cannot be held to apply in this case however unless we can resolve two questions resulting from the foregoing quotation.

First, § 22-20-3, supra, states that the action is to be brought by the personal representative. The quotation from Kilkenny, supra, does not refer to the personal representative; it refers to the administrator. While the administrator may be the personal representative, there may be a personal representative who is not the administrator. See Henkel v. Hood, 49 N.M. 45, 156 P.2d 790 (1945). Further, the personal representative recovers damages under our wrongful death act on behalf of the statutory beneficiaries. Section 22-20-3, supra. The recovery is not a part of decedent’s estate. Trefzer v. Stiles, 56 N.M. 296, 243 P.2d 605 (1952).

Thus, there appears to be an inconsistency in the Kilkenny, supra, statement that an administrator may recover decedent’s damages prior to death and that this recovery is authorized by our wrongful death statute. The inconsistency ■ is resolved, however, if “administrator” is read to mean “personal representative.” We think this was what was meant in Kilkenny, supra. If, however, our view is wrong, it does not change the result in this case. Although plaintiff sues as personal representative of Catherine Lavan, she pleads that in fact she is the duly appointed ancillary administratrix with the Will annexed in the matter of the Last Will and Testament of the decedent. Plaintiff can recover for decedent’s damages prior to death as personal representative since in fact she is the administratrix.

Second, decedent’s"damages prior to death may not be recovered if someone else has a right to recover those damages. Thus in Kilkenny, supra, the personal representative (administrator) could not recover if the damages prior to death could be recovered by the husband as an individual. This requirement does no more than give effect to the statutory language. Under § 22-20-1, supra, the damages recoverable are those that'thé person injured could have recovered if that person had not died. If the injured person could not have recovered for damages prior to death, because the recovery belonged to a parent, spouse, or some other person, then the personal representative (administrator) cannot recover them.

Even- though applicable, defendants assert in effect that Kilkenny, supra, was incorrectly decided. They rely on two of the holdings in Cerrillos Coal R. Co. v. Deserant, supra. First, they refer us to the holding that there could be no recovery for the pain and suffering of decedent. This holding follows from the decision that recovery was for the pecuniary injury to the statutory beneficiaries. We have rejected this view. We also reject the view that the pain and suffering of deceased may not be recovered. Our statute, §§ 22-20-1 and 22-20-3, supra, permits such a recovery.

Defendants’ second attack on the correctness of Kilkenny, supra, is concerned with the language in § 22-20-3, supra, which permits the fact finder, in awarding damages to have:

“ * * * regard to the mitigating or aggravating circumstances attending such wrongful act, * *

Defendants rely on the Cerrillos, supra, holding that this language applies only to the question of exemplary damages (they are not involved 'in this case) and do not apply to the question of compensatory damages. , Defendants point out that Kilkenny, supra, relied on the above quoted language in allowing recovery of. decedent’s damages prior to death. ' "

We agree that Kilkenny, supra, and Cerrillos, supra, cannot be reconciled in the effect they give to the statutory language concerning mitigating or aggravating circumstances. Our view is that Cerrillos, supra, gave too narrow a view to the statute; since § 22-20-3, supra, expressly states the fact finder may award exemplary damages. To say that the reference to-mitigating or aggravating circumstances refers only to exemplary damages is to say the Legislature said the same thing twice.This view renders a part of the statutory language superfluous. But we are to construe the statutory language to avoid such a result. Cromer v. J. W. Jones Construction Co., supra. In our opinion Kilkenny,. supra, did avoid such a result and gave-proper effect to the statutory language. That opinion relied in part on “the mitigating and aggravating circumstances”' in holding there may be a recovery for damages sustained by the decedent between the date of injury and date of death.

Defendants assert that if Kilkenny, supra, was correct when decided, it is no-longer correct because of subsequent changes in the statute. Their argument-here is based on § 22-20-2, supra, and its-amendment in 1961. That section reads

“Every action instituted by virtue of the provisions of this and the preceding-section [22-20-1] must be brought within three [3] years after the cause of" action accrues. The cause of action-, accrues as of the date of death.”

The 1961 amendment added the second sentence.

Prior to the 1961 amendment, decisions-concerned with when the limitation period, began'to run had held that the cause of action accrued at the time of the injury.. Natseway v. Jojola, supra; State v. District Court of the Sixth Judicial Dist., 55 N.M. 135, 227 P.2d 937 (1951). In so holding, our statute was characterized as a. survival statute. Kilkenny v. Kenney, supra, also referred to our statute as a survival statute. This characterization of our statute was based on the view that no new-cause of action arose upon the death of decedent.

The 1961 amendment provided that the cause of action accrued as of the date of death. Defendants contend that with this amendment, our statute can no longer be considered a survival statute. Baca v. Baca, supra, discussed, but did not decide, this point. Defendants refer us to the following language from Baca, supra:

“* * * While the wrongful death act was said * * * to be a survival statute, it has actually been held to be one in survival only in the sense that the cause of action accrues at the date of the injury and does not create a new cause of action upon the death of the injured person. * * *

“ * * * [W] e note that the legislature, by Ch. 202, New Mexico Session Laws, 1961, amended the statute to provide that the cause of action for a wrongful death accrues at the time of death, thereby suggesting the possibility that the legislature considered the statute as not being one of survival. * * * ”

If our statute is not a survival statute, ■defendants assert that there may be no recovery except for the death itself. The effect of this argument, in this case, is that there could be no recovery for the pain and suffering and medical and related care prior to death.

In our opinion, contentions over whether our statute is one of survival confuses the end result with the means to the .-end. The issue is what damages may be recovered under the language of our statute. Prior to the 1961 amendment, it 'had been held that no new cause of action arose upon the death of decedent. Natseway v. Jo jola, supra; State v. District Court of the Sixth Judicial Dist., supra. Our wrongful death act “preserves” the right of action, Whitmer v. El Paso & S. W. Co., supra, and transmits to the personal representative the cause of action which the injured person would have had if death had not ensued. See Hogsett v. Hanna, supra.

Did the 1961 amendment to § 22-20-2, supra, change the rule that the injured person’s cause of action is handed on to the personal representative? No. What did the amendment do? It removed the illogic from the decisions interpreting § 22-20-2, supra, prior to the 1961 amendment. We have previously referred to the decisions holding that the cause of action under our wrongful death statute accrued at the date of injury. This is not logical. The action under our statute is in the personal representative, Baca v. Baca, supra. The personal representative has no cause of action, nothing has been transmitted to him, until the injured person dies. Thus, the decisions prior to the 1961 amendment held the limitation period was running as to the personal representative’s cause of action prior to the time the statute authorized him to sue. The 1961 amendment provides the cause of action accrues upon death of the injured person. That is logical for at that point the injured person’s cause of action has been handed over to the personal representative. At that point our statute authorizes the personal representative to proceed. As we see it, the 1961 amendment does no more than change the time when the limitation period begins to run against the personal representative’s cause of action. The amendment to § 22-20-2, supra, made no change in the damages the personal representative might, recover. . Those damages are authorized in §§ 22-20-1 and 22-20-3, supra.

Kilkenny v. Kenney, supra, in our opinion, was correctly decided and was not reversed by the 1961 amendment to § 22- . 20-2, supra. Kilkenny, supra, is consistent with the language of the statute. -The trial court erred in holding the personal representative of decedent, who is the -administratrix of decedent’s estate with the Will annexed, cannot recover, under our wrongful death act, for decedent’s conscious pain and suffering and medical and related care between the injury and death.

Defendants have relied on N.M.U.J.I. 14.-17 in presenting their contentions in connection with both of the questions answered in this opinion. To the extent that the instruction is contrary to the views expressed herein, it is wrong.

The order of the trial court is reversed. The cause is remanded with instructions to vacate that order and reinstate plaintiff’s amended complaint on the docket.

It is so ordered.

SPIESS, C. J., concurs. OMAN, J., dissenting.

1 . All of Justice Watson’s withdrawn opinion pertinent to the wrongful death damage question is quoted in Hogsett v. Hanna, supra.