Smith v. Missouri Pacific Railroad Company
| Decision Date | 28 November 1927 |
| Docket Number | 19 |
| Citation | 1 S.W.2d 48,175 Ark. 626 |
| Parties | SMITH v. MISSOURI PACIFIC RAILROAD COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; reversed in part.
Reversed and remanded.
E F. Duncan, for appellant.
Thos B. Pryor and H. L. Ponder, for appellee.
Appellant 's intestate, Heairl Smith, received a personal injury on June 9, 1921, at a public crossing on appellee's railroad at or near Hoxie, Arkansas, from which he suffered conscious pain and suffering for a period of twelve hours, and thereafter died. His mother, the appellant, was thereafter appointed administratrix, and on June 5, 1924, nearly three years after the death of said intestate, suit was brought in the Lawrence Circuit Court for the Eastern District, to recover damages for the estate against appellee, for the alleged wrongful injury, causing conscious pain and suffering, and the alleged wrongful death of said intestate, for the benefit of the next of kin. This cause was, on the petition of appellee, removed to the Federal court at Jonesboro, where, on May 4, 1925, a nonsuit was taken, and the present action was instituted in the Jackson Circuit Court on April 29, 1926. The above facts were alleged in the complaint. In apt time appellee demurred to the complaint, on the grounds, first, that the complaint did not state a cause of action; and, second, that the complaint showed on its face that the deceased was killed by a train of appellee on the 9th day of June, 1921, and that the first complaint in this cause was filed on June 5, 1924, and the action was therefore barred by the statute of limitations. The court sustained the demurrer, and, upon appellant's declining to plead further, judgment was rendered for appellee, and appellant has duly prosecuted an appeal to this court.
The only question presented for our consideration is the statute of limitations controlling in such case. At common law, no cause of action for personal injury survived the death of the injured person, and therefore appellant's right to maintain this action depends upon the statutes of this State, the injury and death having occurred in this State. In the case of Earnest v. St. Louis, Memphis & S. E. Ry. Co., 87 Ark. 65, 112 S.W. 141, this court said: "At common law a right of action existed for the injury of a person, which did not result in death, but no right of action existed for the death of a human being." Again, in the same case, the court said: "The general rule is that, where a cause of action does not exist at common law, but is created by the statutes of a State, it only exists in the manner and form and for the length of time prescribed by the statutes of the State which created it." The court cited a number of cases sustaining this proposition of law. Again the court said, in the same case: "Therefore we conclude that it is now well settled that, where a statutory right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control, no matter in what forum the action is brought." Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394.
The next question to be determined is what statute of limitations is applicable. Appellant contends that the three-year statute is applicable, and, having brought her first action within three years, on which a nonsuit was taken after removal to the Federal court, and having reinstated the same within one year after nonsuit, she is within the period of limitations, and contends that the action is governed by §§ 1070 and 6950, C. & M. Digest. The first of these sections is as follows:
"For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts." And § 6950 is the statute...
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