McBride v. Berman

• Decision Date: 14 May 1906
• Citation: McBride v. Berman, 94 S.W. 913, 79 Ark. 62 (Ark. 1906)
• Parties: MCBRIDE v. BERMAN. BERMAN v. MCBRIDE. (Two cases.)
• Court: Arkansas Supreme Court

94 S.W. 913

79 Ark. 62

MCBRIDE v. BERMAN.

BERMAN v. MCBRIDE. (Two cases.)

Supreme Court of Arkansas

May 14, 1906

Appeals from Sebastian Circuit Court, Fort Smith District Styles T. Rowe, Judge.

The first case is reversed; the second, affirmed.

Reversed and remanded.

Edwin Hiner, for Mrs. McBride.

Mrs McBride's right of action is based upon the statute, sections 6289, 6290, Kirby's Digest. It is intended to award compensation to the widow and next of kin who suffer damages by reason of the death of the injured party. This action is for such compensation, and not for the benefit of the estate. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. Kirby's Digest, §§ 5999, 6001, 6002, 6004. In this case, the plaintiff is the widow of the deceased, the only person having a beneficiary interest in his life and the sole party in interest. By the express terms of the statute, she is entitled to bring and maintain this action. 53 Ark. 117; 3 C. C. A. 129; 71 Ark. 258.

Read & McDonough, for Mr. and Mrs. Berman.

Plaintiff cannot maintain this action without joining the brothers and sisters of deceased in the same. In the absence of a personal representative the action must be brought by the heirs at law of the deceased, the amount recovered being for the exclusive benefit of the widow and next of kin, to be distributed to them as provided by law for the distribution of personal property left by persons dying intestate. Kirby's Digest, §§ 6289, 6290. The whole estate cannot go to plaintiff under the statute (Kirby's Digest, § 2642), notwithstanding she has no children by deceased, because it is shown he left a brother and sisters, who are heirs at law and next of kin within the meaning of the statute. Such being the case, the widow cannot maintain the action alone. 52 F. 371. See also 53 Ark. 255.

Ira D. Oglesby, for appellee D. J. Young.

Plaintiff cannot maintain the suit because it is shown that deceased left heirs at law, who were not joined as parties in the action.

OPINION

HILL, C. J.

Mrs. Della McBride brought suit in Sebastian Circuit Court, Fort Smith District, against Mrs. P. Berman, P. Berman, her husband, D. J. Young, and Al Belt tenants of Mrs. Berman, for damages for the death of her husband, J. W. McBride, whose death was alleged to have been caused by the negligence of the defendants in failing to keep enclosed a stairway leading from the sidewalk to the basement of a building owned by Mrs. Berman, situated in the city of Fort Smith. The case was tried before a jury on issues raised as to negligence of Mrs. Berman, the owner, and the other defendants in their several relations to the property, and the contributory negligence of McBride, and on a question of necessary parties. At the conclusion of the evidence the court gave a peremptory instruction to find in favor of defendants, P. Berman, Young and Belt, and Mrs. McBride appeals from that judgment. The jury returned a verdict for $ 2,000 in favor of Mrs. McBride against Mrs. Berman, and from a judgment entered thereon Mrs. Berman appealed.

At the threshold of the case is the question of parties. The evidence of the plaintiff, Mrs. McBride, showed these facts That she was the widow of J. W. McBride; that no children had been born to them, and that McBride's next of kin were a sister and two brothers. She further testified that McBride did not contribute to the support of his sister or his brothers. There was no administration upon the estate of McBride. Mrs. Berman, in her appeal, and Berman, Young and Belt in Mrs. McBride's appeal, contend that, in the absence of an administrator, the next of kin are necessary parties, and without them that there is a fatal defect in parties preventing Mrs. McBride maintaining the action. Mrs. McBride contends that, having sworn affirmatively, and the testimony being uncontradicted, that McBride did not contribute to the support of...