St. Louis, Iron Mountain & Southern Railway Co. v. Haist

• Decision Date: 28 February 1903
• Citation: 72 S.W. 893,71 Ark. 258
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. HAIST
• Court: Arkansas Supreme Court

72 S.W. 893

71 Ark. 258

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. HAIST

Supreme Court of Arkansas

February 28, 1903

Appeal from Saline Circuit Court, ALEXANDCR M. DUFFIE, Judge.

Affirmed.

On the 7th of February, 1899, William Haist, a fireman on one of defendant's freight trains, operated at the time in the state of Louisiana, was killed in a collision between the train he was on and a passenger train on a rainy night, near a station on the defendant's road called Howcott. One Watkins was engineer on said freight train, and John C Farrar was the conductor. The testimony is to the effect that it was the duty of these officers to have sidetracked this freight train at said station of Howcott to await the passing of the passenger train, which was on time, and was approaching Howcott; that at the time of passing Howcott, the conductor of the train was asleep in the caboose, and did not know when his train passed Howcott; that the engineer's watch was 50 or 60 minutes slow, and that he supposed he would have ample time to reach Antoine, another station ahead, before the passenger train would reach it, and, so thinking, ran past Howcott without attempting to sidetrack his train, and about four miles from Howcott the freight train collieded with the passenger train, causing the death of Haist. To recover damages for the alleged negligent killing of Haist, this suit was brought by his daughter, Anna Elizabeth Haist, a minor, by H. E. Burnham, her legally appointed guardian by the court of Nebraska. The complaint alleges that defendant was a railroad corporation, operating its railway through Rapides Parish, Louisiana; that on February 7th, 1899, Wm. Haist, father of Anna E. Haist, was in the employ of defendant on one of its trains as fireman that the train upon which Wm. Haist was working as fireman was negligently caused to collide with another of defendant's trains, and in the collision he was killed that said collision and death occurred at Pollock station, in the state of Louisiana, and was the result of negligence of the defendant and its employees; that, under the laws of Louisiana, any person who, by any act whatever, causes damage to another, is liable for said damages, and is held to repair the damage, and the right of this action survives, in case of death, in favor of the minor child and widow of the deceased or either of them, and the survivor may recover damages sustained by the death of the parent; that Wm. Haist left no widow, and that Anna E. Haist was his only child and heir, and, under the laws of Louisiana, was the proper person to bring suit; that Wm. Haist cared for and supported the said child, and would have continued to do so, had he lived; that by reason of said injury, pain, suffering and death of said Wm. Haist, and the negligent causing of same, his said child was damaged $ 40,000; ending with the usual prayer.

An amendment to the complaint alleged as follows:

That the injury, pain, suffering and death of Wm. Haist was caused by the negligence of defendant in operating its trains and the negligence of the train dispatcher in failing to give proper directions, and by reason of not having a sufficient number of men to operate its train with safety, and by permitting its employees laboring on said train to work an unreasonable length of time without rest or sleep, and by reason of its conductor not directing and causing said train to be switched at Howcott, so as to provide for the safe passage of the train with which it collided; that, under the laws of Louisiana, a conductor or person in charge of a railroad train does not bear the relation of a fellow-servant to the fireman of the train, and the company is liable for his negligence; that, also, under the laws of Louisiana, a railway company is liable for the negligent acts of its train dispatcher, and for not having a sufficient number of employees on the train, and for allowing its men to labor without sleep an unreasonable length of time.

Upon objection being taken to the capacity of a foreign guardian to sue in the state, the complaint was amended, by leave of court, by inserting the name of T. N. Robertson as next friend of Anna Elizabeth Haist, to which defendant objected.

The answer specifically denied the allegations of the complaint, and alleged that the death of the intestate was caused by the negligence of the engineer, a fellow servant.

The testimony of experienced lawyers practicing in Louisiana tended to show that in that state engineer and fireman are fellow servants, but that the conductor of a train, having command of the other employees, and representing the railroad company is not a fellow servant with the engineer, but is a vice-principal, and that in case of injury through the negligence of a fellow servant and conductor the railroad company is liable.

Verdict and judgment were rendered for plaintiff in the sum of $ 1,800. Defendant has appealed.

Judgment affirmed.

Dodge & Johnson, for appellant.

The plaintiff, being a foreign guardian, had no capacity to maintain this suit, in the absence of any statutory authority. 16 Ark. 381; Story, Confl. Laws, §§ 499, 504; 4 G. & J. 332; 16 Ark. 391. This objection is jurisdictional, and may be raised on demurrer. 63 Mo. 302; 45 Id. 469; 43 Id. 196; 51 N.H. 247; s. c. 12 Am. Rep. 108. See, generally upon power of foreign guardian to sue: 37 Pa.St. 60; 35 N.H. 495; 51 N.H. 247; Schouler, Dom. Rel. 445; Story, Confl. Laws, § 504; Cooley, Const. Lim. 340. The right of action for death of a human being is purely statutory. 33 Ark. 353; Cf. Sand. & H. Dig. §§ 5911-12. Since the killing took place in Louisiana, the statutes of Arkansas on this question can not be applied. 51 S.W. 635. Nor can the courts of this state enforce the Laws of Louisiana. 43 S.W. 627; 9 S.W. 540; 22 S.W. 249, 250; 22 S.W. 1062; 38 Vt. 294; 18 Kan. 46; 61 Tex. 433; 45 Md. 45; 72 Md. 145; 38 Vt. 299; 25 Ohio St. 667; 143 Mass. 301; 98 Mass. 91. 10 Ohio St. 121; 5 Sawy. 439; 37 Wis. 347; 16 S.W. 487. For points of difference between Louisiana and Arkansas statutes, see Sand. & H. Dig. §§ 5911-12, and Civ. Code La. Art. 2315, as construed in 50 La. Au. 57. See also 4 S.W. 627; 9 S.W. 540. If a suit is based upon a foreign statute, same must be pleaded in haec verba and proved. 6 Abb. Pr. 239; 30 Barb. 433; s. c. 10 Abb. Pr. 71; 98 N.Y. 377; 10 So. 661; 43 Ga. 461; 18 Ill.App. 328; 61 Ia. 441; s. c. 16 N.W. 351; 45 Md. 41; 6 Coldw. 582. The court erred in allowing the amendment by substitution of next friend for guardian. 56 Ark. 155; 18 Ala. 395; 57 Ala. 168; 49 Me. 536; 51 Cal. 154. It was error to give plaintiff's third instruction. 63 S.W. 996; 52 Ill. 290; 69 Ill. 526; 37 La.Ann. 654; 42 Id. 689.

Murphy & Mehaffy and Robertson & Martineau, for appellee.

The act of 1873 (Sand. & H. Dig. § 3626) does not repeal the act of 1843 (§ 1, art. 7. Gould's Digest) allowing suits by foreign guardians. Cf. 7. Baxt. 210. The minor was the real party in interest, and the guardian simply appeared in the action as a representative, and not as a party. 1 Estee's Pldg. § 479; 95 Cal. 456; 64 Cal. 593; 87 Cal. 530; 32 Cal. 111; 91 Am. Dec. 566; 157 U.S. 195; 36 Ind. 214; 85 N. Car. 113; 75 N. Car. 263. The foreign guardian might even be regarded as a proper person to sue as next friend. 13 Mont. 70; 3 N.H. 345; 126 Pa.St. 426; 49 Mich. 50; 24 S.W. 604; 9 Utah 23; 96 N. Car. 19; 6 Coldw. 619. The court had jurisdiction of the subject-matter. 39 Minn. 11; 62 Ark. 254; 51 Ark. 459; 47 Am. St. 771; 63 Ia. 70; 65 Ia. 727; 31 Minn. 11; s. c. 145 U.S. 593; 20 S.W. 819; 103 U.S. 11; 8 Baxt. 341; 49 Ga. 106; 84 N.Y. 48; 168 U.S. 445; 15 Mo.App. 503; 10 Ill.App. 618; 117 Ind. 439; 80 N.W. 776; 57 N. Y. St. 485; 96 F. 80; 15 L. R. A. 583; 155 Mass. 176; 56 Am. Dec. 200. The statutes of Louisiana and Arkansas are similar upon the right of action in such cases as this. 13 L. R. A. 461; Cf. Civ. Code La. § 2315; Sand. & H. Dig. §§ 5908, 2911, 5912. The Louisiana statute is also a "survival statute." Civ. Code § 2315, as amended by Act No. 71, 1894; 37 La. An. 650; 40 La. An. 178. The law of Louisiana giving the right of action will be enforced by our courts. 15 Mo. 509; 78 Ill.App. 290; 13 L. R. A. 461; 99 N.Y. 267; 126 Pa.St. 207; s. c. L. R. A. 261; 168 U.S. 448; 62 Ark. 254. The law of Louisiana was sufficiently pleaded. 1 Scam. 418; 117 N.Y. 130; 33 Conn. 34; 148 Ill. 266; 116 U.S. 1, 7; 108 Ill. 628.

OPINION

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. Burnham. In discussing this question, the supreme court of the United States, in Morgan v. Potter, 157 U.S. 195, 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 a guardian ad litem, by whom a 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. 196; 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 P. 163; Young v. Young, 3...