Murphy v. Province

• Decision Date: 24 April 1922
• Docket Number: 315
• Citation: 240 S.W. 421,153 Ark. 240
• Parties: MURPHY v. PROVINCE
• Court: Arkansas Supreme Court

240 S.W. 421

153 Ark. 240

MURPHY v. PROVINCE

No. 315

Supreme Court of Arkansas

April 24, 1922

Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor reversed.

Judgment reversed, and cause dismissed.

E. B Kinsworthy and B. S. Kinsworthy, for appellant. Under our statutes (C. and M. Dig.,) §§ 1070-1075) the next of kin who are entitled to damages for the death of a parent are limited to such as sustained a pecuniary loss by his death, and cannot be held to include children living apart from the deceased parent and not dependent upon him. 53 Ark 117; 51 Ark. 509; 76 Ark. 555; 79 Ark. 62; 93 Ark. 183; 104 Ark. 59; 134 Ark. 1; 203 Pa.St. 511; 93 A. S. R. 774; 272 N.Y. 8, 607.

Where recovery for the death of the parent was had under the Federal statute, the same rule applies as contended for under our State statute. See 57 L.Ed. 1031, 228 U.S. 702; 57 L.Ed. 785, 228 U.S. 173; 59 L.Ed. 1433, 238 U.S. 507.

Allyn Smith, for appellee.

The fund should be distributed under the statute of descents and distributions in the proportion it would have been had it been personal property. See 41 Ark. 187; 103 U.S. 11; 222 S.W. 735. The widow is entitled only to a distributive portion. 98 Ark. 102; 79 Ark. 62; 52 F. 371; 197 P. 97; 14 A. L. R. 509 and notes; 28 Ohio St. 191; 14 S.W. 559; 87 Mich. 374.

In making the distribution the statute must be followed and distribution made as with other personal property. 111 Ala. 572; 59 Ala. 272; 24 Ark. 487; 726 Iowa 158; 108 Iowa 695; 160 N.C. 432; 128 Ga. 371; 18 Ill. 349; 26 Ia. 400; 21 Ill. 606.

OPINION

MCCULLOCH, C. J.

Appellant 's husband, W. T. Murphy, was a locomotive engineer, engaged in railroad service on the line of the Missouri Pacific Railroad Company, then under government control, and while in such service and working in the line of his duty at Cotter, Arkansas, he received personal injuries from which death ensued.

Appellant and her husband resided in Baxter County, Arkansas, and letters of administration were issued to her upon the estate of said decedent, and she instituted an action in the circuit court of Pulaski County against the Director General of Railroads to recover damages on account of the death of said decedent, alleging that it was caused by negligence in the operation of the railroad. Damages in the sum of $ 1,000 were sought on account of the pain and suffering of the deceased, and damages in the sum of $ 9,000 were asked as compensation for the next of kin.

There was a judgment in favor of appellant as such administratrix for the recovery of $ 500 on the first count for damages, and for the recovery of $ 7,500 on the second count.

Appellee is a daughter of said decedent, and she instituted the present action in the chancery court of Pulaski County against appellant to recover a share of the amount collected under said judgment.

Appellee set forth in her complaint the pleadings in the original action instituted by appellant as administratrix against the Director General of Railroads, and she alleged that she was one of the children and distributees of the estate of said decedent and was entitled to an equal share of said amount so recovered.

Appellant filed her answer in the cause, disputing the right of appellee to share in the amount so recovered, and the record contains a recital that the cause was heard upon an agreement that "the copies of the complaint and judgment entry set forth in plaintiff's complaint are correct, and the facts set forth in defendant's answer are true."

The answer of appellant recites the fact that there are four living children of said deceased, W. T. Murphy, one of whom is an infant nine years of age, and the other three, including appellee, are adults, and that appellee is a married woman, twenty-six years of age, who was, at the time of the death of said W. T. Murphy, and for about ten years prior thereto, living apart from said decedent and was not dependent on said decedent, nor was she receiving any contributions of any kind from him.

It was the contention of appellee below, as here, that the recovery of the funds in controversy was secured in an action under the statute of this State which is generally referred to as having been patterned after Lord Campbell's Act (Crawford & Moses' Digest, §§ 1074, 1075), which provides that the recovery secured thereunder "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."

The lower court sustained the contention of appellee and rendered a decree in her favor for a child's part, or one-fourth, of the sum recovered by appellant, after deducting the widow's share of one- third.

The contention of appellant is that said decedent was, at the time of the injury which caused his death, engaged in the operation of a locomotive while used in interstate commerce, and that the recovery was had either under the Federal employers' liability act or under a statute of this State other than the one under which appellee seeks recovery, which provides a different method of distribution of the funds thus secured. Crawford & Moses' Digest, § 7138, et seq., Acts of 1911, p. 55.

The first question, therefore, which we must determine is, which one of the statutes the original cause of action and the recovery were predicated upon, for if the funds were recovered under the Federal statute, they must be distributed according to the terms of that statute (Taylor v. Taylor, 232 U.S. 363); and if under one of the statutes of this State, the amount recovered must be distributed according to the statute which authorizes the recovery.

The original complaint and the judgment of the court thereon were incorporated in the complaint in the present action. The complaint in the former action did not contain an allegation to the effect that Murphy was engaged in interstate commerce at the time of his injury, nor did it contain any allegation indicating that he was not so engaged. The complaint may be treated as silent on that subject. The action was brought by the personal representative of the decedent, which was authorized by either of the three statutes now under consideration, and under the complaint as unamended there might have been a recovery either under the State statutes or the Federal statute, according to the facts disclosed in the proof. St. L. I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S.W. 874.

The facts of the case, as recited in the answer of appellant, which is conceded to state the facts correctly, are that Murphy was engaged in interstate commerce at the time of his injury. But, even accepting the allegations of the original complaint itself as denoting the character of the accident, it was one not based on §§ 1074 and 1075, Crawford & Moses' Digest, but it was based on the more recent statute referred to above. Crawford & Moses' Digest, § 7138, et seq.

The later statute, just mentioned, related to what we have denominated as railroad hazards, and we have construed the statute to include "every employee who, when injured, was performing some work in the line of his duty, directly connected with and incident to the use and operation of a railroad." St. L. I. M. & S. Ry. Co. v. Ingram, 118 Ark. 377; St. L. I. M. & S. Ry. Co. v. Wiseman, 119 Ark. 477, 177 S.W. 1139.

It was alleged in the original complaint that...