St. Louis, I. M. & S. Ry. Co. v. M'Cormick

• Citation: 9 S.W. 540
• Parties: ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> McCORMICK.
• Decision Date: 02 November 1888
• Court: Supreme Court of Texas

9 S.W. 540

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

v. McCORMICK.

Supreme Court of Texas.

November 2, 1888.

Appeal from district court, Bowie county; W. P. McLEAN, Judge.

Action by Mary McCormick against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff and defendant appeals.

Todd & Hudgins, for appellant. Vaughn & Leary, for appellee.

WALKER, J.

This is an action by Mary McCormick, widow of James McCormick, for damages against appellant for negligently causing her husband's death, while he was in the employ of the defendant company. It was alleged that the defendant was a corporation, chartered under the laws of the United States, and engaged in running trains in its business from St. Louis, Mo., through Arkansas, and ending at Texarkana, a city in Arkansas and Texas. That deceased was killed in Texarkana, in Arkansas, in Miller county. The statutes of Arkansas relating to such suits, and relied upon, were set out. It was alleged that deceased left no child or children, nor any blood relation, and that there was no administration pending on the estate. The details of the killing were set out. The defendant, at the first term after the filing of the suit, answered by demurrer and general denial. At subsequent terms the defendant pleaded in abatement that the estate of the deceased was in administration in the state of Arkansas; also to the jurisdiction of the court, etc. The court sustained exceptions to the dilatory pleas, because filed after plea to the merits. The same facts, however, were pleaded in bar, and were submitted to the jury in the charge of the court as requisites to the plaintiff's case. The defendant could not therefore have been injured by the ruling of the court upon the pleadings. Trial was had at March term, 1888, and verdict and judgment for plaintiff for $5,000. The errors assigned raise the questions whether the courts of this state will extend relief upon a cause of action made so by the statutes of another state in which the act was committed giving the action, and whether, if our courts, in comity, will do so, are the statutes of Arkansas or of Texas alike or similar, so as to invoke the duty of comity under the statutes as similar or alike? The laws of Arkansas in question are here set out: "Act 53 of the general assembly: Section 1. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the 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 felony. Sec. 2. 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 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; and in every such action the jury may give such damages as they shall deem 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, that every such action shall be commenced within two years after the death of such person." Rev. St. Ark. c. 125, § 5537: "All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state." "Sec. 5539. When any person shall be wounded by a railroad train running in this state, he may sue for damages in his own name, or, if he be a minor, his father, if living, may sue, and if his father be dead, then the mother may sue, and if both father and mother be dead, then the guardian of such minor may sue for and recover such damages as the court or jury trying the case may assess." In relation to the descent and distribution of the estates of intestate decedents, by said Revised Statutes of 1884, it is also provided as follows: "Section 2528. If there be no children or their descendants, father, mother, nor their descendants or any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the state." Const. Ark. § 32, art. 5: "No act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property; and in case of death from such injuries, the right of action shall survive, and the general assembly shall prescribe for whose benefit such action shall be prosecuted." Those relied upon by the defendant are as follows: "Rev. St. Ark. § 6353: The words `personal representatives' signify the executor or administrator of a deceased person, or the officer or other person appointed to take charge of his estate." "Sec. 224. The sheriff shall, by virtue of his office, be public administrator in and for his county. Sec. 225. It shall be the duty of each public administrator to take into his charge all the estate, of every kind, of deceased persons in his county in the following cases: First, where a stranger dies intestate in his county, without relations, or dies leaving a will, and the executor named is absent, or fails to qualify and enter into bond, as required by law; second, where persons die intestate, without any known heirs, and administration is not taken by some responsible person; third, where persons unknown are found dead, or die in his county; fourth, where money, property, papers, or other estate is exposed to loss and damage, and no other person...