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

• Decision Date: 05 April 1890
• Parties: DAVIS <I>v.</I> ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

13 S.W. 801

DAVISv.

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

Supreme Court of Arkansas.

April 5, 1890.

Appeal from circuit court, White county; M. T. SANDERS, Judge.

Action by John M. Davis, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the death of plaintiff's son, Clarence Davis. The father sues, as administrator of the deceased, to recover for the benefit of the estate, and also for the benefit of the next of kin, and also brings another action to recover for the loss of his son's services. Mansf. Dig. Ark. § 5223, provides that, "for wrongs done to the person or property of another, an action may be maintained against the wrong-doer, and such action may be brought by the person injured, or after his death by his executor or administrator." Section 5225 provides that, "whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, 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 corporation which, would have been liable if death had not ensued, shall be liable to an action for damages;" and section 5226 provides that every such action shall be brought by the personal representative of the deceased, and shall be for the benefit of the widow and next of kin.

Sanders & Watkins, for appellant. Dodge & Johnson, for appellee.

COCKRILL, C. J.

These appeals involve three suits brought against the railway on account of an injury to a minor resulting in his death. Two are by the personal representatives of the minor, — one of them for the benefit of his estate, the other for the benefit of the next of kin. The third is an action by the father of the minor to recover for the loss of his son's services during his minority. The question presented at the threshold of the cases is, who can maintain an action against a railroad for an actionable injury resulting in the death of a minor? The answer involves a consideration of the common law and the statutes on the subject.

The cause of action which accrued to the injured party by the common law survives to his administrator after his death, by virtue of a provision of the Revised Statutes of 1838 which is carried into Mansfield's Digest as section 5223. The third section of the act of February 3, 1875, prescribed that when a wife was killed by a railway train the husband should sue; when a minor was killed, the father, mother, or guardian should sue. In all other cases the suit was to be by the legal representative. Acts 1875, p. 133. The act applied only to injuries by the trains of railways. In 1883 another act upon the subject was passed, embodying in this particular the provisions of the English statute of 9 & 10 Vict., known as "Lord Campbell's Act." Mansf. Dig. §§ 5225, 5226. It contains no express repeal of either of the other provisions; and it is argued that, as the act of 1875 is a special act relating only to railways, none of its provisions are abrogated by the subsequent general act, but, unless it supersedes the act of 1875, in so far as it affects this inquiry the law is left in an anomalous condition. It would stand thus: If an actionable injury resulting in death should occur by an agency other than the trains of a railway, the widow and next of kin would enjoy the benefit of damages recovered therefor under the last act; but if the injury was inflicted by the trains of a railway the recovery would be solely for the benefit of the estate, because the last act would not apply in such cases. Railway Co. v. Townsend, 41 Ark. 382. Again, a mother dependent upon her adult son for support could recover nothing for a culpable injury to him by the trains of a railway resulting in death, but could recover if the injury was inflicted by a natural person, a street railway, or other corporation, or perhaps by a steam railway by other means than through its trains. We cannot attribute an intention to the legislature to work out such a result. As if to dispel all doubt as to the intent to extend the benefits of the last act to the widow and next of kin of the deceased in all classes of cases, the act declares that it shall apply in every case where "the person who, or the company or corporation which," is liable for the injury, is sued. The reasonable construction of the act is that it applies to all cases in which a recovery may be had, regardless of the agency by which the injury was inflicted. Such has been the accepted construction of the act by bench and bar, without an express ruling on the point. See Fordyce v. McCants, 51 Ark. 509, 11 S. W. Rep. 694; Railway Co. v. Townsend, 41 Ark. supra.

The question, then, is, what is the effect of this statute (Mansf. Dig. §§ 5225, 5226) upon the general provision (Id. § 5223) regulating the revival of actionable wrongs to the administrator or executor of the injured person? We are not without authority upon the question. 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 right of action given by the latter statute to the personal representative of one whose death has been caused by the default of another is created by the statute, and is not a continuation of the right of action which the deceased had in his life-time, although the new right, it has been ruled, arises only by preserving the cause of action which was in the deceased. If the deceased never had a cause of action, none accrues to his representative or next of kin. The right which accrued to the deceased revives to his administrator by virtue of the former statute. Id. § 5223. The newly-created right results from an accrual on the death of the injured party. Both actions are prosecuted in the name of the personal representative, where there is one, and may proceed pari passu without a recovery in the one having the effect of barring a recovery in the other, because the suits are prosecuted in different rights, and the damages are given, upon different principles, to compensate different injuries. One is for the loss sustained by the estate, and for the suffering from the personal injury in the lifetime of the decedent, the recovery in which goes to the benefit of the decedent's creditors, if there are any; the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the next of kin occasioned by the death alone. The death is the end of the period of recovery in one case, and the beginning in the other. In one case the administrator sues, as legal representative of the estate, for what belonged to the deceased; in the other, he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them. Blake v. Railway Co., 18 Q. B. 93; Pym v. Railway Co., 2 Best & S. 759; Barnett v. Lucas, 6 Ir. Com. Law, 247; Needham v. Railway Co., 38 Vt. 294; Brass & Copper Co. v. Babbitt, 74 N. Y. 395; Littlewood v. Mayor, etc., 89 N. Y. 24; Railway Co. v. Phillips, 64 Miss. 693, 2 South Rep. 537; Hulbert v. Topeka, 34 Fed. Rep. 510; Fordyce v. McCants, supra. The statutes under which the two actions are brought do not, therefore, cover the same ground. There is no repugnancy between them, and the latter does not impair the right conferred by the former. Needham v. Railway Co., supra; Com. v. Railway Co., 107 Mass. 236. We...