Kansas City Southern Railway Company v. Henrie

• Decision Date: 06 July 1908
• Citation: Kansas City Southern Railway Company v. Henrie, 112 S.W. 967, 87 Ark. 443 (Ark. 1908)
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. HENRIE
• Court: Arkansas Supreme Court

112 S.W. 967

87 Ark. 443

KANSAS CITY SOUTHERN RAILWAY COMPANY v. HENRIE

Supreme Court of Arkansas

July 6, 1908

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed with remittitur.

STATEMENT BY THE COURT.

G. W Henrie, who was employed by the Kansas City Southern Railway Company as conductor on a work train, was killed on November 6, 1905, while attempting to couple cars in his train at Horatio, Arkansas, and his widow, Ollie M. Henrie, and his three infant children instituted this action in the circuit court of Miller County to recover damages alleged to have been sustained on account of his death.

The damages are laid at the sum of $ 50,000, and on a trial of the case the jury returned a verdict in favor of the plaintiffs, assessing damages in the sum of $ 32,500.

Negligence of the company is charged in permitting the drawheads of the cars to become rotten and defective, so that when Henrie went in between the cars to adjust the coupling the drawheads passed each other and allowed the two cars to come together and catch him and crush him to death instantly. It is also alleged in the complaint that the plaintiffs are the widow and only heirs at law of said decedent, and that no administrator of his estate had ever been appointed.

The defendant filed its answer, denying all the allegations of the complaint.

The material facts established by the testimony are discussed in the opinion of the court.

Judgement reversed and cause remanded.

S. W Moore and Read & McDonough, for appellant; C. B. Moore, of counsel.

1. There is no proof that deceased did not have other children and heirs at law. 79 Ark. 62; Kirby's Digest, § 6290; 39 Ill. 495; 7 Bush, 50; 12 N.H. 470; 75 Md. 376; also Kirby's Digest, §§ 2636, 2538, 2640, 2647 2658-9.

2. There is no proof that there was no personal representative. Kirby's Digest, §§ 54, 55, 6290, 7808; 29 Ark. 418; 16 Me. 257; 57 Mo. 603; 9 S.W. 540; 3 Dill. 124; 102 S.W. 700; 76 Ark. 377; 11 S.E. 891; 44 Ark. 499. Letters of administration are not the same as letters testamentary. Kirby's Digest, §§ 1 to 14, 20 to 34, 35 to 37, 54-5, 70.

3. There is no evidence to show that proper inspection by the company would have discovered the defect if any. The burden was on plaintiff to show that the coupling was defective, that it was unknown to deceased that the defect caused the injury, and that defendant knew of the defect or could have known it in the exercise of reasonable care. 82 Ark. 372; 74 Id. 19; 83 Ark. 318; 79 Ark. 437.

4. The testimony of the two negroes is against the physical facts. 79 Ark. 608.

5. It was error to refuse to permit witness Preble to say whether or not the place was dangerous. 114 Ala. 519.

6. If the testimony of Gibson was admissible at all, no foundation was laid. 24 Ark. 251; 57 Id. 387; 55 Id. 128; 2 Elliott on Ev., §§ 1041-2; 64 Ark. 523. He was not an expert.

7. It was error to give instructions 1 and 2. 77 Ark. 567; 76 Id. 333. One is abstract; the other not applicable to the facts. 74 Ark. 437; 77 Id. 567; 75 Id. 260; 74 Id. 19; 63 Id. 593; 77 Id. 128.

8. Measure of damages is not properly defined. Sutherland on Dam., § 1267; 60 Ark. 558.

9. It was extremely dangerous to go between the cars, especially on a curve. If deceased disregarded the danger, he assumed the risk. 68 Ark. 316; 77 Id. 367, 290; 81 Id. 345.

10. Verdict clearly excessive.

N. B. Morris, Weeks & Whitley, and W. H. Arnold, for appellee.

1. The question of improper parties cannot be raised here for the first time. The proof shows the only heirs and no administration. A defect of parties is waived by failure to object. 44 N.Y.S. 28; 14 A.D. 595. Misjoinder cannot be first urged on appeal. 37 A. 830; 182 Pa.St. 131; 24 S.E. 422; 43 P. 328; 13 Wash. 502; 68 N.E. 443; 204 Ill. 540.

2. While in name there is a difference between administrator and executor, in fact and in law they are the same. 1 Words & Phrases, 199; 62 Md. 560.

3. Whether the cars were defective or not, and whether the defect was known or could have been by proper inspection, was a fact for the jury. 79 Ark. 437; 82 Id. 372.

4. There was no error in instructions 1 and 2. They do not make the company the insurer of the life of deceased, but put on it the duty of exercising ordinary care to furnish reasonably safe appliances with which to work. That is the law. If not full or clear enough, defendant should have asked special charges. 48 Ark. 333; 56, Id. 210, 237.

5. In charging the jury as to the measure of damages the court followed the statute and the Sweet case. 63 Ark. 563.

6. The exceptions to instructions were general 83 Ark. 61; 75 Id. 76; 56 Id. 602; 69 Id. 637; 82 Id. 391; 73 Id. 594; 81 Id. 190.

7. No error in instructions objected to, nor in refusal to charge. 77 Ark. 367; 92 S.W. 244.

8. Verdict not excessive. No limit to recovery for death. Const. art 5, § 32. It is matter for the sound discretion of the jury on the evidence. 104 S.W. 913; 107 Id. 374.

9. It is not negligence nor contributory negligence per se to go between cars to make a coupling. It is for the jury. 82 Ark. 11; 79 Id. 53; 53 Id. 458; 77 Id. 367; Ib. 458; 138 Ala. 487.

OPINION

MCCULLOCH, J., (after stating the facts.)

1. It is contended, in the first place, that the testimony fails to show that appellees were the only children and heirs at law of the decedent, or that there was no personal representative of his estate.

The statutes of this State provide that an action for damages caused by the wrongful act, neglect or default of another "shall be brought by and in the name of the personal representative of such deceased person, and if there be no personal representative, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate." Kirby's Digest, § 6290.

Where there is no personal representative of the decedent, all the heirs at law who could take as distributees of the estate under the laws of descent must be joined in the action. McBride v. Berman, 79 Ark. 62, 94 S.W. 913.

The only testimony bearing on these points was that of Mrs. Henrie, and is as follows:

"Q. When did you and Mr. Henrie marry?

"A. In 1893. At Sealy, Texas.

* * * *

"Q. Did you and he have any children?

"A. Yes, sir.

"Q. How many children did you have?

"A. Three.

"Q. What were the names and ages of these children?

"A. The oldest is Vivian. She is 13, and George Whitfield Henrie is 11 now, and Ollie Marie Henrie is 7.

"Q. All of them live with you, and they are all the children of yourself and your deceased husband?

"A. Yes, sir.

"Q. Those are the only children you and Mr. Henrie have?

"A. Yes, sir.

* * * *

"Q. There is no administration pending on his estate?

"A. No, sir.

"Q. No guardianship or administration pending?

"A. No, sir."

She also testified in detail concerning his care and treatment of the children, and stated that he contributed nearly all his earning to the support of the family. She was not cross-examined on this subject.

It is argued that the proof does not negative the fact that Henrie died testate, and that there was an executor of his estate, nor that he may have married and had living issue of that marriage prior to his intermarriage with appellee, Mrs. Henrie.

This is, we think, a strained construction of the testimony. True, it does not expressly negative these facts, but it does so by fair implication. The use of the word "administration," as applied to estates of deceased persons in its common and popular acceptation, is sufficiently comprehensive to cover the meaning of an executorship. It is so defined by the lexicographers.

Webster: "Administration; (a) The management and disposal, under legal authority, of the estates of an intestate, or of a testator having no competent executor. (b) The management of an estate of a deceased person by an executor, the strictly corresponding term execution not being in use."

Our statute treats of executors as well as administrators in a chapter under the general subject of administration. The law writers on the subject treat it in the same way. See, also, In re Murphy, 144 N.Y. 557, 39 N.E. 691; Crow v. Hubard, 62 Md. 560.

Nor does the testimony leave room for an inference that there may have previously been administration on the estate. The testimony of Mrs. Henrie leads fairly and irresistibly to the conclusion that the children named were all that her husband had. She testified concerning their marriage and the names and ages of all their children, and it can scarcely be inferred that there had been another marriage and set of children born when the record is entirely silent on the subject. It is fairly to be presumed that, if there had been children of a former marriage, Mrs. Henrie knew of it. Appellant did not, by asking an instruction on the subject, treat the question as an issue in the case. Aside from a formal denial in the answer of the allegations of the complaint concerning administration and next of kin, appellant does not appear to have insisted on the question until the case reached this court.

2. Do the facts established by the evidence sustain the verdict as to negligence?

Deceased was at the time of his death a conductor in charge of a work train, and was engaged in hauling gravel for ballast from Horatio, Arkansas. The cars of his train had been loaded, and some of them were standing on a curved "Y" track. Other cars were attached to the engine. Orders were received to move the...