St. Louis, Iron Mountain & Southern Railway Company v. Craft, 38

• Court: Supreme Court of Arkansas
• Writing for the Court: HART, J.
• Citation: 171 S.W. 1185,115 Ark. 483
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CRAFT
• Docket Number: 38
• Decision Date: 07 December 1914

171 S.W. 1185

115 Ark. 483

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
v.
CRAFT

No. 38

Supreme Court of Arkansas

December 7, 1914

Appeal from Jackson Circuit Court; R. E. Jeffery, Judge; modified and affirmed.

Judgment affirmed.

E. B. Kinsworthy, Campbell & Suits and T. D. Crawford, for appellant.

1. The evidence is not sufficient to prove any conscious suffering on the part of the deceased. No witness testified when he died, nor any who testified that he was conscious after the injury. The low groans and muscular movements observed by witnesses were mere incidents of the death. From the character of the injuries, the car wheel having passed over his body and crushed the lower part of his abdomen, it is not a reasonable inference that he was conscious, and mere conjecture can not supply the necessity of proof of conscious suffering. This being a case under the Federal statute, the ruling in The Corsair, 145 U.S. 335, should be followed. See, also, 161 S.W. 1136; 43 L. R. A. 568; Tiffany, Death by Wrongful Act, § 74; 8 Cush. 108; 125 Mass. 90, 28 Am. Rep. 214; 134 Mass. 499; 68 Ark. 1; 145 Mass. 335; 1 Am. St. 458; 108 Ark. 396.

2. There is no proof of consciousness for any length of time after the injury. The verdict is manifestly excessive. 84 Ark. 241; 90 Ark. 136; 102 Ark. 417; 103 Ark. 361; 165 S.W. 627; 70 F. 270.

3. The statute does not permit two recoveries. In adopting the amendment of 1910, Congress intended to provide for survival of the employee's right of action, which is a different liability from that provided by the death act. In providing that "there shall be only one recovery for the same injury," Congress recognized that otherwise two separate actions might be brought in case of the wrongful death of an employee, viz., one under the death act, and one under the survival act. Act April 22, 1908, § 1, as amended April 5, 1910, § 9; 227 U.S. 68. The survival act in many States applies only to cases where death was not instantaneous and the death act to cases of instantaneous death. 88 Me. 42; 15 L. R. A. (N. S.) 1003; 128 Mich. 444; 3 S.D. 369; 117 Mich. 329; 43 L. R. A. 574; 106 Ill. 131; 119 Id. 586; 34 L. R. A. 797; 18 Kan. 46; 58 Id. 475; 34 F. 510; 12 Bush (Ky.) 144; 98 Ky. 700; 138 Id. 704; 86 Id. 389. Notwithstanding the divergent views of the State courts as above cited all agree that there can only be one action for damages caused by wrongful act. Two actions can not be sustained for the same injury. 193 Pa.St. 30; 25 Utah 263; 106 Ill.App. 641; 86 Cal. 142; 84 Id. 515; 34 Conn. 57; 21 Ore. 239; 64 Vt. 652; 89 N.Y. 24; 96 Am. St. 154; 139 Cal. 480.

There are cases which hold that two separate actions may be brought, one by the administrator for the benefit of the estate, and the other for the widow and next of kin. 155 Mass. 344; 53 Ark. 117; 14 L. R. A. (N. S.) 893; 8 Id. 384. But "nemo debet bis vexari pro und et eadem causa." 1892 A. C. 576; 10 U.S. App. 339; 52 F. 371; 98 Ky. 385; 67 N.Y. 417; 193 Pa.St. 339; 74 Am. St. 690; 88 Me. 42, etc.

Jones & Campbell, for appellee.

1. The judgment should be affirmed for noncompliance with rule 9, in that the purported abstract filed by appellant does not pretend to be an abstract or abridgement of the transcript, contains no abstract of the pleadings, only a small part of the evidence, make no references to the transcript nor to the pages thereof. It omits the instructions given and refused, does not show that a motion for a new trial was filed in time, nor that it assigned as error the grounds contended for here, nor that a bill of exceptions was filed, etc. 91 Ark. 381; 103 Ark. 430; 99 Ark. 241; 105 Ark. 63; Id. 290; 57 Ark. 104; 58 Ark. 148; 76 Ark. 138; 101 Ark. 207; 92 Ark. 213; 100 Ark. 552; 102 Ark. 95; 78 Ark. 374; 86 Ark. 570; 90 Ark. 230; 104 Ark. 375; 95 Ark. 593.

2. This court will not consider issues raised here for the first time. 95 Ark. 593; 102 S.W. 376; 101 Ark. 95.

3. Appellant not having moved in the lower court to dismiss for misjoinder of causes of action it can not now raise the issue of two causes of action. Kirby's Dig., §§ 6081, 6082; 105 Ark. 290.

4. Appellant will not be permitted to shift the theory on which the case was tried below and split the appeal. 101 Ark. 95; 80 Ark. 65; 83 Ark. 575; 53 Ark. 514; 106 Ark. 421; 2 Standard Enc. of Procedure, 143.

5. The question of lack of proof of conscious suffering is not before the court. So far as the abstract shows appellant did not allege as one of the grounds for a new trial that there was not evidence to support a finding of conscious pain and suffering. 91 Ark. 484.

6. There was sufficient evidence to support a verdict for pain and suffering.

Counsel's contention that the ruling of the Federal courts, particularly in The Corsair, should apply to the exclusion of the rulings of the State court, is unsound. A determination of this issue does not involve a construction of the Federal statute. It is purely a question of evidence, and the rules of evidence of this court alone, govern. 39 L. R. A. 428. And this court will give the evidence its strongest probative force in favor of the verdict. 97 Ark. 486; 87 Ark. 100; 97 Ark. 438. If there is evidence to sustain the verdict, the jury's finding is conclusive. 95 Ark. 172; 104 Ark. 162. See, also, 59 Ark. 215; 84 Ark. 245.

7. The verdict was not excessive. 76 Ark. 193; 62 Ark. 329; 42 Ark. 527; 75 Ark. 326; 65 Ark. 628.

OPINION

[115 Ark. 486] HART, J.

J. T. Craft, as administrator of the estate of Tom Craft, deceased, sued the St. Louis, Iron Mountain [115 Ark. 487] &...