Texarkana & Fort Smith Railway Co. v. Adcock

• Decision Date: 06 June 1921
• Docket Number: 32
• Citation: 231 S.W. 866,149 Ark. 110
• Parties: TEXARKANA & FORT SMITH RAILWAY COMPANY v. ADCOCK
• Court: Arkansas Supreme Court

231 S.W. 866

149 Ark. 110

TEXARKANA & FORT SMITH RAILWAY COMPANY v. ADCOCK

No. 32

Supreme Court of Arkansas

June 6, 1921

Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant.

1. The court should have directed a verdict for defendant. The injury occurred in Texas, and under its laws damages for personal injuries to the wife are community property for which alone the husband can sue, and the complaint does not state a cause of action. Under the laws of Arkansas defendant never waives the failure of the complaint to state a cause of action. C. & M. Digest, § 1192, and cases cited. The right of plaintiff to recover was raised. As to matters of evidence the law of the former governs. 113 Ark. 265; 142 Id. 159. However, the right of the wife to maintain the suit depends upon where the injury occurred. 67 Ark. 295; 50 Id. 155; 155 U.S. 190; 98 Ark. 240; 194 U.S. 120; 26 Cyc. 1079. See, also, 79 F. 934; 59 N.Y.S. 66; 28 Id. 446; 35 Am. Rep. 705; 39 Kan. 56; 126 Pa. 296. The Texas law governs. 60 Tex. 334; 67 S.W. 438; 65 Tex. 281; 73 Id. 29; Speer on Married Women, § 227; 223 S.W. 270. The husband alone can sue for personal injury to the wife where the injury occurs in Texas. 79 S.W. 345; 72 Id. 78; 193 Id. 137; 149 Id. 347; 96 Id. 26. Nor can the wife sue for personal injuries in the State of Washington. 182 P. 630. The same rule exists in California and Nevada. 108 P. 328; Ib. 98. The husband alone can sue in Texas. 100 S.W 791; 124 S.W. 149; 214 S.W. 250.

2. It was error to overrule the continuance. While a matter of discretion, yet the courts must not abuse their discretion. 100 Ark. 301; 126 Id. 483; 99 Id. 394; 85 Id. 334; 21 Id. 460; 142 Id. 15. A proper case was made and good grounds shown for continuance.

3. The court erred in refusing to give instruction 4 for defendant. The carrier was not bound to give personal notice to the passenger that her station had been reached. 134 Ark. 265. The jerk was purely accidental and not due to negligence, and plaintiff can not recover. 129 Ark. 369.

4. It was error to give plaintiff's instruction No. 1. A reasonable time was allowed by the carrier for passengers to get off and on trains and a reasonable opportunity was given plaintiff. 128 Ark. 479, and cases cited. 101 Ark. 183-190; Ib. 128; 105 Id. 261.

5. It was error to give plaintiff's request No. 2.

6. It was error to give plaintiff's request No. 3. It gives plaintiff the absolute right to stop anywhere on her journey out and wait until all other persons would come in, without notice to the brakeman. Besides, the instruction comments upon the testimony.

7. It was error to give plaintiff's request No. 4. It does not cure the errors in other instructions given.

8. It was error to give plaintiff's request No. 5. It does not properly declare the law as to the weight of evidence, and the duty of the jury is to be governed by the preponderance of the evidence. 99 Ark. 69. It comments on the testimony.

9. It was error to refuse instruction No. 5 asked by defendant. If plaintiff's detention was due to her own neglect, she can not recover.

10. It was error to refuse No. 6 for defendant. The evidence shows that plaintiff was extremely rash and negligent in attempting to alight from the train and can not recover. The instruction duly submitted to the jury the question whether or not her injury was due solely to the negligence of defendant or to her own negligence. It was good law.

J. M Carter, for appellee.

There is no error in the instructions, and the verdict is sustained by the evidence. Under the evidence the jury would have been warranted in awarding punitive damages had plaintiff asked them.

OPINION

WOOD, J.

This action was brought by the appellee against the appellant. The appellee alleged that she was a passenger on appellant's train from Texarkana, Arkansas, to Bloomburg, Texas; that when the appellant stopped its train at Bloomburg for the purpose of allowing the appellee and other passengers to alight, there were standing on its platform other persons who desired to take passage on that train, and, before the appellee, in the exercise of ordinary care had time to debark, other persons were allowed to board the train in such numbers that appellee thereby was prevented from getting off until the incoming passengers had sufficiently cleared the passage way; that immediately after the passage way was cleared appellee was going down the steps to debark, and the train was put in motion, and the appellee was thrown off her balance. Appellee alleged that the step leading from the coach to the platform was high and dangerous; that the appellant failed to furnish any stool or step on which to alight and failed to furnish any one to assist her in alighting from the coach; that these acts of negligence caused appellee to fall from the coach upon the hard surface of the platform and produced serious personal injuries, which she set forth in detail, to her damage in the sum of $ 3,000, for which she prayed judgment.

The appellant answered, denying specifically the allegations of negligence, and set up as an affirmative defense contributory negligence on the part of the appellee.

Appellee testified that she and her husband were passengers on appellant's train as alleged in her complaint. and that when the train stopped at Bloomburg, Texas, they got up to get off, and when they got to the door people were crowding in so that appellee and her husband could not get out. They started out as quickly as they could. Her husband was ahead of her. She had no baggage except a little hand satchel. Just as soon as they could get out, her husband stepped off, and she started to get off, and the train gave a jerk and threw her backward. She first realized that the train was moving when she made her step. Nobody was there to help her off. There was no stool to step on. She then described her injuries, which it is unnecessary to set forth. Other witnesses corroborated the testimony of the appellee.

There was testimony on behalf of the appellant tending to contradict the testimony introduced on behalf of the appellee. It was shown that a white man by the name of Marshall was brakeman on the train on that occasion; that he was at his place on the platform where the passengers get on and off and had a step stool. Marshall was not present to testify at the trial, and the appellant moved to continue the cause on that account. Appellant alleged that Marshall was present at a former term of the court when the cause by mutual agreement was continued, and that he could not be present at this term because he was afflicted with paralysis which at this time rendered him, and for some time to come, would render him unable to talk; that his testimony was material because the appellant expected to prove by him facts, which it set forth, directly contradicting the testimony of the appellee as to the acts of negligence to which she had testified. Appellant alleged that it thought that if the cause was continued there would be a reasonable chance of either procuring the attendance of the witness, or his deposition.

The motion for continuance was filed December 8, 1920, and accompanying the motion was a certificate of a physician made on December 2, 1920, to the effect that Marshall was afflicted with throat trouble in the nature of paralysis rendering him unable to talk and that he would not be able to attend court.

The rulings of the court in the giving and refusing prayers for instructions will be considered as we proceed. The trial resulted in a verdict and judgment in favor of the appellee. The appellant by this appeal seeks to reverse the judgment.

1. Appellant contends that the appellee can not maintain this suit since the injury occurred in Texas, and under the laws of that State damages for personal injuries to the wife are community property for which the husband alone can sue. The Legislature of Texas in 1915 enacted the following statute: "All property or money received as compensation for personal injuries sustained by the wife shall be her separate property, except such actual and necessary expenses as may have accumulated against the husband for hospital fees, medical bills, and all other expenses incident to the collection of said compensation." Art. 4641a of 1918 Supplement to Vernon's Texas Civil & Criminal Statutes.

Since the passage of the above act, compensation for personal injuries sustained by the wife is no longer community property, and such compensation is now the separate property of the wife. In the absence of a decision of the highest court of Texas holding that under the above statute the husband alone can maintain a suit to recover compensation for personal injuries to his wife, we are constrained to hold that the wife under the above statute should be permitted to maintain a suit in her own name and right. Such would undoubtedly be the proper construction if the injury had occurred in this State under a similar statute, when construed in connection with section 5577 of Crawford & Moses' Digest. That statute expressly confers upon married women the right to sue and to be sued and to enjoy all rights and to be subject to all the laws as though she were a femme sole. Learned counsel for appellant cite us to cases of the court of Civil Appeals of Texas holding that the husband alone can sue for community property, and that damage for personal injuries to the wife are community property. Ainsa v. Moses, 100 S.W. 791; Cone v. Belcher, 57 Tex. Civ. App. 493, 124 S.W. 149; Allemania Fire Ins. Co. v. Angear, 214 S.W. 450. But counsel have not directed our attention to any decision of the Court of Civil Appeals of Texas, or of the Supreme Court, since...