Billingsly v. St. Louis, I. M. & S. Ry. Co.

• Citation: 107 S.W. 173
• Parties: BILLINGSLY v. ST. LOUIS, I. M. & S. RY. CO.
• Decision Date: 16 December 1907
• Court: Supreme Court of Arkansas

107 S.W. 173

BILLINGSLY v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

December 16, 1907.

Appeal from Circuit Court, Jackson County; Frederick D. Fulkerson, Judge.

Suit by W. A. Billingsly, executor, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.

This suit was instituted by one G. W. Hurley against the appellee to recover damages in the sum of $20,000, the alleged value of the services and companionship of Hurley's wife, who, it was alleged, was killed through the carelessness and negligence of appellee's servants, and "by the wrongful act, neglect, and default of appellee." While the suit was pending Hurley died, and it was sought to revive the cause in the name of appellant as his executor. The court instead abated the action, and this appeal is prosecuted from a judgment dismissing the cause.

Stuckey & Stuckey, for appellant.

T. M. Mehaffy and J. E. Williams, for appellee, cited Davis v. Railway, 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283; Saltmarsh v. Candia, 51 N. H. 71; Harvey v. Railroad Co., 70 Md. 319, 17 Atl. 88; Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25; Jenks v. Hoag, 179 Mass. 583, 61 N. E. 221; Railroad Co. v. Bean, 94 Tenn. 388, 29 S. W. 370; Woodward v. Railway Co., 23 Wis. 400; Huberwald v. Railroad Co., 50 La. Ann. 477, 23 South. 474; Sanders v. Railroad, 111 Fed. 708, 49 C. C. A. 565; Railroad v. Selly, 49 Am. & Eng. R. R. Cas. 495; Martin v. Railroad, 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311; Frazier v. Ga. R. R. & B. Co., 101 Ga. 77, 28 S. E. 662; Texas Loan Agency v. Fleming, 18 Tex. Civ. App. 668, 46 S. W. 63; Schmidt v. Menasha W. W. Co., 99 Wis. 300, 74 N. W. 797; Ellyson v. Railroad, 33 Tex. Civ. App. 1, 75 S. W. 868; Chivers v. Roger, 50 La. Ann. 57, 23 South. 100; Gibbs v. City of Hannibal, 82 Mo. 143; Loague v. Railroad Co., 91 Tenn. 458, 19 S. W. 430.

WOOD, J. (after stating the facts as above).

The only question is: "Did the cause of action survive the death of Hurley?" The action is based upon section 6288 of Kirby's Digest, as follows: "When a wife be killed in this state by the wrongful act, neglect or default of any person, company or corporation, the husband may have a cause of action therefor against such wrongdoer, and be entitled to damages for the services and companionship of his said wife in whatever amount the jury trying the cause may consider he is entitled to; provided, suit be brought within two years from the time the said cause of action occurs, which action may be brought by and in the name of the husband." The statute under which survival to the executor of Hurley is sought reads as follows: "Sec. 6285. For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrongdoer, or after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contract."

To establish a survival under this section, it must be held that the killing of the wife of Hurley was an injury to the person or property of Hurley himself. Such is the contention of appellant; but the case of Davis v. Nichols, 54 Ark. 358, 15 S. W. 880, decides directly to the contrary. Judge Cockrill rendering the court's opinion, said: "The `injury...