Earnest v. St. Louis, Memphis & Southeastern Railway Co.
Citation | 112 S.W. 141,87 Ark. 65 |
Parties | EARNEST v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILWAY COMPANY |
Decision Date | 29 June 1908 |
Court | Supreme Court of Arkansas |
Appeal from Randolph Circuit Court; J. W. Meeks, Judge; affirmed.
Judgment affirmed.
Whipple & Whipple, for appellant.
Limitations are governed by the law of the forum. 158 U.S. 285; 13 Peters 312; 155 U.S. 618; 88 F. 610; 94 Id. 471; 162 U.S 329; 147 U.S. 647; 153 Id. 671; 154 Id 177; 89 F. 473; 96 Id. 397; 18 Ark. 384; 21 Id. 287. The common law has fixed its own doctrine that limitation prescribed by the lex fori, in respect to remedies, must prevail in cases of personal actions. Angell on Lim., § 66; 7 Mo. 241; 10 Barn. & Cress. 903; 1 Barn. & Ad. 281; 2 Mees. & Wels. 722. The limitation in Arkansas applies in a common law action against a sheriff for a tort committeed in another State, where plaintiff resided in Arkansas since the commencement of the suit. 68 Ark. 189; 18 Id. 384; Cooley on Torts, 479. The Missouri statute under consideration is a remedial one. 168 U.S. 445; 146 Id. 670; 145 Id. 145.
W. F Evans and W. J. Orr, for appellee.
The provisions of the Missouri statute under consideration are conditions attached to the right itself and not limitations. 36 Mo. 128; 76 Id. 329; 81 Id. 169; 91 Id. 86; 103 Mo.App. 477; 181 Mo. 421. This condition follows into a foreign State. Tiff. on Death by Wrongful Act. As the source of the obligation is the foreign law, the defendant is entitled to the benefit of whatever conditions the foreign law creates. 194 U.S. 120; 53 Ark. 117; 18 P. 57; 51 F. 188; 8 F. 849; 64 Id. 83; 119 U.S. 199; 2 U.S. App. 222; 2 C. C. A. 163; 51 F. 188; 44 Md. 563; 25 O. St. 629; 83 Ga. 621; 10 S.E. 268. The action must be brought within the time prescribed. 49 Ga. 106; 57 N.Y.S. 485. Busw. on Lim., § 351.
On the 31st day of October, 1902, David A. Earnest was a conductor on appellee's line of railway, which extends from Cape Girardeau in Missouri to Pocahontas in Arkansas. On that day at the town of Delta in Missouri, while engaged in his duties as freight conductor and while attempting to uncouple two cars of defendant's train, said David A. Earnest was caught between the cars and mashed. He died from the wounds received in a few days thereafter.
Appellant alleges that the injury and death was caused by the negligence of the appellee. That she is the widow of said David A. Earnest, deceased. That said deceased had no minor children. That she has resided in the State of Arkansas since the death of her husband, and was never a resident of the State of Missouri.
The action was commenced in the circuit court of Randolph County, Arkansas, on the 16th day of July, 1904.
Appellee filed a general demurrer to the complaint. The demurrer was sustained, and judgment was rendered in favor of the defendant for costs. An appeal was granted to this court.
This suit is based on section 2864 of the Revised Statutes of Missouri in 1899, which reads as follows:
Section 6 of the act of December 12th, 1855, now section 2868 of the Revised Statutes of 1899, reads as follows:
"Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of action shall occur."
The first question presented by the record is whether this statute of Missouri creates a statutory liability?
At common law a right of action existed for an injury to the person, which did not result in death, but no right of action existed for the death of a human being. Counsel for appellant seems to have been confused in regard to the two classes of cases.
In Barker v. Hannibal & St. Joseph Railroad Co., 91 Mo. 86, 14 S.W. 280, the Supreme Court of the State of Missouri said in discussing this statute:
This case was cited and followed in Brink v. Wabash Ry. Co., 160 Mo. 87, 60 S.W. 1058, and the following quotation adopted from the case of Insurance Company v. Brame, 95 U.S. 754, 24 L.Ed. 580:
In the case of Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 350, this court said: "By the common law the death of a human being could not be made the subject of a civil action." And in Davis v. Railway, 53 Ark. 117, this court said:
"The English rule, which is commonly followed by the courts of the States whose statutes embody the provisions of Lord Campbell's Act, is that the rights of action given by the latter statutes to the personal representative of one...
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