Brown v. Cole

• Decision Date: 29 May 1939
• Docket Number: 4-5500
• Citation: 129 S.W.2d 245,198 Ark. 417
• Parties: BROWN, ADMINISTRATOR, v. COLE, ADMINISTRATOR
• Court: Arkansas Supreme Court

129 S.W.2d 245

198 Ark. 417

BROWN, ADMINISTRATOR, v. COLE, ADMINISTRATOR

4-5500

Supreme Court of Arkansas

May 29, 1939

Appeal from Randolph Circuit Court; John L. Bledsoe, Judge affirmed.

Judgment affirmed.

E Newton Ellis and Schoonover & Schoonover, for appellant.

A. J Cole, Smith & Judkins, W. A. Jackson and O. C. Blackford, for appellee.

HUMPHREYS J. MCHANEY and BAKER, JJ.

OPINION

HUMPHREYS, J.

Sometime prior to the fall of 1930 John R. Kizer married a Mrs. Arnold, who was a widow at the time, and who was the mother of a boy child by her former husband. A short time after the marriage the mother of the boy died leaving as her only heir Bonner Arnold, who was then nine years of age.

His grandparents were living, and by and with their consent the boy was adopted by his stepfather on proper petition in probate court of Randolph county, which order of adoption entered on October 1, 1930, recited that Bonner Arnold was nine years old, that both his parents were dead, that he was the owner of certain real estate consisting of blocks 9 and 10, Masonic Heights of the city of Pocahontas and the owner of 355 acres of land in said county, particularly describing same; that it was to the best interest of the child for said adoption to be granted and for the name of the child to be changed from Bonner Arnold to Bonner Kizer.

After the adoption the boy continued to reside with his stepfather or adoptive father. His grandparents died a short time after the adoption leaving as their sole surviving heir Bonner Kizer. Bonner continued to live in the home and under the care of the adoptive father until the 22d day of October, 1936, at which time he died of strychnine poisoning after suffering intense pain for several days.

John R. Kizer was suspected of having administered the poison to his adopted son and was charged with and arrested for murder. After the arrest of Kizer, A. J. Cole was duly appointed administrator of the estate of Bonner Kizer, deceased, and on October 28, 1936, brought this suit as such administrator in the circuit court of said county against John R. Kizer for damages for the pain and suffering endured by Bonner Kizer resulting from strychnine administered by John R. Kizer to Bonner Kizer. Service of the suit was obtained upon John R. Kizer and within a few weeks thereafter John R. Kizer committed suicide by taking strychnine.

The case was revived in the name of Ben A. Brown as administrator of the estate of John R. Kizer, deceased.

On August 29, 1938, appellant filed a motion to abate the cause of action, alleging that such cause of action did not survive the death of the alleged wrongdoer, John R. Kizer, which motion was overruled by the court over appellant's objection and exception.

A general demurrer was filed to the complaint and amendments thereto which was overruled by the court over appellant's objection and exception. Appellant filed an answer denying the material allegations of the complaint and amendments thereto and the cause proceeded to trial upon the pleadings, testimony of witnesses introduced by the parties and instructions of the court, resulting in a verdict and judgment for $ 17,500 against the estate of John R. Kizer, from which is this appeal.

Appellant contends for a reversal of the judgment for the following reasons:

First. That it is a cause of action for wrongful death, which abated on the death of the alleged wrongdoer.

Second. That the cause of action involves an unemancipated minor child suing his father in tort and that such action is not maintainable.

Third. That there is no substantial evidence upon which the jury might properly base a verdict, and a verdict, therefore, should have been directed for appellant.

Appellant argues that the cause of action is based upon § § 1277 and 1278 of Pope's Digest for the wrongful death of Bonner Kizer, which action abates with the death of the wrongdoer. Appellee concedes that if this action was one for the wrongful death of Bonner Kizer based upon said sections of Pope's Digest the action would abate, but asserts that under the allegations of the complaint it was an action based upon § 1273 of Pope's Digest which is as follows: "For wrongs done to the person or property of another, an action may be maintained against the wrong-doers, and such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrong-doer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts."

It is true that the complaint alleges that Bonner Kizer died as a result of the poisoning, but this was in the nature of an allegation by way of inducement and the gist or real allegation for which damages were claimed is as follows: The complaint alleges that the deceased "suffered untold excruciating pain and agony for several days prior to his death; that the said deceased could have, had he survived, sued for and recovered for said pain and suffering which is now recoverable by his personal representative herein, which pain and suffering appellant is entitled to the sum of $ 30,000 actual damages."

Therefore, this is not a suit for "wrongful death" which would abate, but is one for injury resulting in pain and suffering, which does survive.

The court was correct in overruling the motion to abate the cause of action.

It is true that this court, in the case of Rambo v Rambo, 195 Ark. 832, 114 S.W.2d 468, announced the following rule: "We, therefore, hold that an unemancipated minor may not maintain an action for...