Fernwood Mining Company v. Pluna

• Decision Date: 12 May 1919
• Docket Number: 218
• Citation: Fernwood Mining Company v. Pluna, 138 Ark. 459, 213 S. W. 397 (Ark. 1919)
• Parties: FERNWOOD MINING COMPANY v. PLUNA
• Court: Arkansas Supreme Court

213 S.W. 397

138 Ark. 459

FERNWOOD MINING COMPANY v. PLUNA

No. 218

Supreme Court of Arkansas

May 12, 1919

Appeal from Johnson Chancery Court; Jordan Sellers, Chancellor; stay bond quashed.

Motion to quash granted.

HART J. MCCULLOCH, C. J., dissenting. Mr. Justice SMITH concurs in views.

OPINION

HART, J., (On motion to quash the stay bond granted).

Appellee was severely injured while working as an employee of appellants in their mine in Johnson County, Arkansas. He sued them for damages and recovered judgment in the circuit court for $ 25,000, and the judgment was affirmed in this court. The question now presented for the determination of the court is whether or not appellants are entitled to a stay of judgment for six months under section 3253 of Kirby's Digest as amended by Act 202 of the Acts of 1909. See Parker v. Wilson, 99 Ark. 344, 137 S.W 926.

The act in question read as follows:

"No stay shall be allowed upon a judgment or decree against any collecting officer or attorney at law, or agent for a delinquency or default in executing or fulfilling the duties of his office or place, or failing to pay over money collected by him in such capacity, or against a principal by his surety, or of a debt due by obligation having the force of a judgment, or of a judgment or decree for specific property, or for the property or its value, or a judgment or decree enforcing a lien in favor of a vendor or mortgagee, or a judgment for personal injury or injuries resulting in death caused by neglect or default of another. In the cases mentioned in this section which a stay is not allowed, the execution shall be so endorsed by the clerk." Acts of 1909.

The only change in the section of Kirby's Digest just referred to made by the Legislature of 1909 is the inclusion in the section of these words, "or a judgment for personal injury or injuries resulting in death caused by neglect or default of another." It is the contention of counsel for appellants that the adjective "personal" qualifies both the words "injury" and "injuries." Hence they contend that the statute does allow a stay in personal injury cases of this character, and that only injuries resulting in death caused by the neglect of another are excepted by the provisions of the statute.

On the other hand, it is contended by counsel for appellee that the words "personal injury" denote an action for negligently causing bodily harm not resulting in death; and the words "injuries resulting in death" refer to the special statutory action growing out of death caused by the wrongful doing of another referred to above.

It is a settled rule of construction of statutes that when the Legislature uses words which have a fixed and well known legal signification, they are presumed to have been used in that sense, unless the contrary intention clearly appears. State v. Jones, 91 Ark. 5, 120 S.W. 154; Townsend v. Penrose, 84 Ark. 316, 105 S.W. 588; Beasley v. Equitable Securities Company, 72 Ark. 601, 84 S.W. 224, and Buckner et al. v. Real Estate Bank, 5 Ark. 536.

Our statute does not define the meaning of the term "personal injury" as is the case in New York and other states.

Blackstone says that the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Lewis' Blackstone, Vol. 1, *129. A violation of these rights at common law is called an "injury to the person" or "personal injury" as contradistinguished to a wrong to a person's property rights. In the ordinary acceptation of the term and the one almost universally used by the legal profession, the words "personal injury" denote bodily harm not resulting in death and an action for "personal injury" or for "personal injuries" mean an action for negligently causing bodily harm not resulting in death.

On the other hand, the common law never designated an action for negligently causing death as an action for "personal injury." Such an action was unknown to the common law and is a creation of statute. It was long ago settled in this State that the right to recover when death ensued did not exist in the character of cases like the present. At common law an action for the recovery of damages for the wrongful killing of a human being was the result of the statute of 9 and 10 Victoria passed in 1846 and known as Lord Campbell's Act. That act, in effect, provides that an action may be maintained whenever death is caused by the wrongful act or neglect which would have entitled the person injured to maintain an action if death had not ensued and such action is for the benefit of certain named persons. Statutes substantially similar to Lord Campbell's Act in these respects have been enacted in a majority of the States, including our own. Davis v. Railway, 53 Ark. 117. So it will be seen that there is a legal distinction between the meaning of the term "personal injury" and the words "injuries resulting in death." We do not think there is anything in the language of the act to indicate that the words were used by the Legislature in other than their common or legal acceptation. The conjunction "or" between the...