Dale v. Sutton, 81-126
| Decision Date | 20 July 1981 |
| Docket Number | No. 81-126,81-126 |
| Citation | 620 S.W.2d 293,273 Ark. 396 |
| Parties | Calvin and Juanita DALE, Co-Administrators, Appellants, v. Hershel Lee SUTTON, Appellee. |
| Court | Arkansas Supreme Court |
John T. Harmon, North Little Rock, and Jeff Mobley, Russellville, for appellants.
Robert R. Cortinez, Little Rock, for appellee.
In 1977 Wanda Faye Sutton died as a result of injuries sustained in an automobile accident. She was survived by her second husband, the appellee, and by three minor daughters, two by her first husband and one by the appellee. The appellants, the decedent's parents, were appointed as administrators of the estate. Their action for wrongful death, brought by them as personal representatives of the estate, was settled with probate court approval for a net amount of about $21,000, after the payment of costs and attorney's fees.
The administrators then filed the present petition in the probate court for an apportionment of the recovery. They sought nothing for themselves, as parents, but asked that the money be divided equally among the three children. The appellee, as the surviving husband, contested that division, asserting that he was entitled to an "appropriate share" of the recovery. After a hearing the probate court entered an order directing that the surviving husband receive one third of the recovery and that the three children each receive two ninths. Earlier language in the order referred to the husband's award as "a curtesy amount of one third." The administrators' appeal was certified to us by the Court of Appeals. For reversal the appellants argue that a divorce suit was pending at the time of the decedent's death, that the husband failed to adduce any evidence of pecuniary injury, that he was not entitled to an award of curtesy, and that we should direct an equal division of the money among the three children.
At the probate court hearing neither side offered any proof of particular elements of damage such as pain and suffering that would have been recoverable for the estate. AMI Civil 2d, 2215 (1974). Neither side offered any proof of pecuniary injuries (defined in AMI 2215), which would have been recoverable for the surviving spouse and next of kin. Law v. Wynn, 190 Ark. 1010, 83 S.W.2d 61 (1935); Fountain v. Chicago, R.I. & P. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), adopting by reference the dissenting opinion in Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961). The surviving husband, however, testified that although his wife had filed suit for divorce before her death they had continued to have marital relations, to have family outings with the three children on weekends, and to try to reconcile their differences. No testimony was offered on behalf of the children.
The statutes provide that the court approving a compromise settlement in a death case shall fix the share of each beneficiary, upon the evidence, and that the probate court shall consider the interests of all the beneficiaries. Ark.Stat.Ann. §§ 27-908 to -910 (Repl.1979). The mental anguish award to each beneficiary is to be determined on an individual basis. Peugh v. Oliger, supra. The appellee testified that he had paid the funeral bill, an expense recoverable by a surviving husband. McCormick v. Sexton, 239 Ark. 29, 386 S.W.2d 930 (1965). His testimony concerning his mental anguish was in our opinion sufficient in...
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Campbell v. State, 89-25
...a felony and was disqualified from holding public office in Arkansas. That ruling has not been shown to be erroneous. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Poindexter v. Cole, 239 Ark. 471, 389 S.W.2d 869 We find no merit in Campbell's argument that he was denied due process ......
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Growth Properties I v. Cannon, 84-53
...that mental anguish may not be inferred on behalf of someone who fails to testify concerning his own experience. See Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981) and Peugh v. Oliger, Admx., 233 Ark. 281, 345 S.W.2d 610 (1961). The award of damages to Don Cannon is disallowed and the ......
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RAD-Razorback Ltd. Partnership v. B.G. Coney Co., RAD-RAZORBACK
...in the record. It being Coney's burden to demonstrate error, the judgment awarded these cross-appellees is affirmed. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Poindexter v. Cole, 239 Ark. 471, 389 S.W.2d 869 Affirmed in part, reversed in part and remanded. HOLT, C.J., and PURTLE,......
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Martin v. Blackmon
...take, that action does not become error simply because the trial court gave the wrong reason for taking it. Dale, Co-Administrators v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W.2d 13 (1965). Therefore, even if the trial court erroneously ......