St. Louis, I. M. & S. Ry. Co. v. Haist

• Decision Date: 28 February 1903
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HAIST.
• Court: Arkansas Supreme Court

Page 893

72 S.W. 893

ST. LOUIS, I. M. & S. RY. CO. v. HAIST.

Supreme Court of Arkansas.

February 28, 1903.

Appeal from Circuit Court, Saline County; Alexander M. Duffie, Judge.

Action by Anna E. Haist, by her next friend, T. N. Robertson, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Dodge & Johnson, for appellant. Murphy & Mehaffy and Robertson & Martineau, for appellee.

HUGHES, J.

In this case, Anna Elizabeth Haist, a minor, was the real plaintiff, and, by amendment to the complaint by leave of the court, T. N. Robertson was her next friend, who represented and cared for her interest in the suit, which had been brought for her. There was no error in the allowance of the amendment by the substitution of T. N. Robertson as next friend, instead of the foreign guardian, H. E. Burnam. In discussing this question the Supreme Court of the United States, in Morgan v. Potter, 157 U. S. 195, 15 Sup. Ct. 590, 39 L. Ed. 670, said: "It is the infant, and not the next friend, who is the real and proper party. The next friend by whom the suit is brought on behalf of the infant is neither technically nor substantially the party, but resembles an attorney or guardian ad litem, by whom the suit is brought or defended in behalf of another." This is the doctrine of the more modern decisions on this question. Whittem v. State, 36 Ind. 214; George v. High, 85 N. C. 113. Though the suit was brought by a foreign guardian who was not qualified to sue in this state, the court ought not to have dismissed it — the infant being the real and proper plaintiff — but did right in appointing some one as next friend to look after her interest in the suit who was qualified to sue for her. Hoskins v. White, 13 Mont. 70, 32 Pac. 163; Young v. Young, 3 N. H. 345; Johnson v. Blair, 126 Pa. 426, 17 Atl. 663; Tate v. Mott, 96 N. C. 19, 2 S. E. 176.

Did the circuit court have jurisdiction of the subject-matter of this suit? The plaintiff Anna Elizabeth Haist was a minor, residing in the state of Nebraska, and brought this suit to recover damages alleged to have been caused by the negligence of the defendant in the state of Louisiana, by the killing of William Haist, her father. That William Haist, the father, was killed in the state of Louisiana, while acting as fireman on defendant's train, without any negligence upon his part, in a collision between a freight train and a passenger train on defendant's railway about four miles from Howcott, in Rapides parish, is clear from the evidence in the case. That that collision was caused by the negligence of the servant or servants of the defendant on the defendant's train is equally clear from the proof in the case. A right of action therefore accrued to the said Anna Elizabeth Haist. It was brought in Hot Springs county, Ark. The action is transitory. Chicago, St. Louis & New Orleans Co. v. Doyle, 60 Miss. 977. Will the courts of Arkansas enforce such right of action as this, arising in the state of Louisiana, by virtue of her laws? It is not a question whether the laws of Arkansas have any extraterritorial force. Counsel for appellant contend that the acts of Arkansas and the act of Louisiana giving the right of action for the wrongful killing of a human being are so dissimilar that such right accruing under the Louisiana statute cannot be enforced in the courts of Arkansas. But it seems to us quite evident that the two statutes are of similar import. They are founded upon the same principles, are aimed at the same evil, construed the same kind of action, and given for the benefit of the same class of individuals. In both the utter failure of redress at common law, when the injury ended in death, was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out. Stoeckman v. Terre Haute & I. R. Co., 15 Mo. App. 503; Wooden v. W. N. Y. & P. R. R. Co., 26 N. E. 1050, 13 L. R. A. 461, 22 Am. St. Rep. 803; Stewart v. B. & O. R. Co., 168 U. S. 448, 18 Sup. Ct. 105, 42 L. Ed. 537; St. L. & S. F. Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225. Public policy in this state is not vitiated by the enforcement of the Louisiana statute in our courts.

The laws of Louisiana read as follows:

"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. The right of this action survives, in case of death, in favor of the minor children, or widow, of deceased, or either of them, or in default of these, in favor of the surviving father or mother, or either of them, for the space of one year. The survivors above mentioned can also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be." Civ. Code, art. 2315.

The Arkansas statutes (Sand. & H. Dig.) read as follows:

"Sec. 5908. 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 the wrongdoer, or after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts."

"Sec. 5911. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

"Sec. 5912. Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and if there be no personal representatives, 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; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided every such action shall be commenced within two years after the death of such person."

Did the complaint state facts sufficient to constitute a cause of action? It was not necessary that it should set out the Louisiana statute in hæc verba in pleading the statute. To set out the substance and effect of the statute was sufficient. Hanley v. Donoghue, 116 U. S. 1-7, 6 Sup. Ct. 242, 29 L. Ed. 535; L., N. A. & C. Ry. Co. v. Shires, 108 Ill. 628; Stacy v. Baker, 1 Scam. 418; Consolidated Tank Line Co. v. Collier, 148 Ill. 266, 35 N. E. 756, 39 Am. St. Rep. 181.

Is the verdict sustained by the evidence? The conductor, Farrar, was asleep or dozing when his train passed Howcott, where it...