Tipler v. Crafton
Decision Date | 28 April 1941 |
Docket Number | 4-6306 |
Citation | 150 S.W.2d 625,202 Ark. 351 |
Parties | TIPLER v. CRAFTON |
Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; Neil Killough, Judge; affirmed.
Affirmed.
Fred M. Belk and W. Leon Smith, for appellant.
Reid & Evrard, for appellee.
The issue is whether, within the period of limitation, an amended complaint when considered with the original, stated a cause of action. The trial court held that it did not.
The suit was brought by Jesse Tipler as administrator of the estate of Frank Tipler. It was alleged that a truck operated by a servant of James and Rupert Crafton [1]
was negligently parked on Highway No. 61 near Hayti, in the state of Missouri, in consequence of which an automobile driven by Walker Crawford struck the back end of the truck and fatally injured Frank Tipler, who was with Crawford.
It is conceded appellants' rights are created by and subject to restrictions of Missouri laws. Revised Statutes of Missouri 1939, §§ 3652, 3653, and 3654.[2]
The applicable statute in the instant case is § 3652.
The civil penalty or forfeiture for negligence resulting in death is fixed by § 3652 at not less than $ 2,000 nor more than $ 10,000, in the discretion of the jury. [3]
Frank Tipler died October 17, 1938.[4]
Suit was filed by the administrator May 9, 1939--twenty-two days after six months from the date of death. During the first six months the widow had the exclusive right of action. Thereafter, for six months, the right to sue was in the minor children. The complaint conforms to the Arkansas procedure in causes arising from wrongful death, one of the allegations being:
[5]
June 12, 1939, defendant's motion to dismiss on the ground that the administrator had no cause of action was passed at the request of plaintiff's counsel in order to allow them time to check authorities. A year later (June 13, 1940) the amended complaint was filed. [6]
It alleged that the five plaintiffs were the minor children and the next of kin of Frank Tipler. [7]
The trial court thought the amended complaint introduced new plaintiffs, and sustained a motion to dismiss.
Appellant insists that the amendment does not allege a different cause of action or set out new facts; that it "simply made the complaint more definite and certain as to who the beneficiaries were," and alleged in more explicit terms that Jesse Tipler, although administrator of the estate, was bringing the action "in the name of and for the benefit of the minor children." Attention is directed to §§ 1305, 1317, and 1463 of Pope's Digest, wherein it is required that actions must be prosecuted in the name of the real party in interest, except as provided in §§ 1307, 1309, and 1310; and that in furtherance of justice the trial court may permit amendments to pleadings, etc. We are also cited to Buckley v. Collins, 119 Ark. 231, 177 S.W. 920; Arkansas Land & Lumber Co. v. Davis, 155 Ark. 541, 244 S.W. 730; McGraw v. Miller, 184 Ark. 916, 44 S.W.2d 366, and other cases shown in the footnote. [8]
The difficulty in applying to the case at bar the principles announced in the decisions to which attention is called by appellants is that at the time the administrator sued he had, prima facie, a cause of action under the fourth classification of § 3652, Revised Statutes of Missouri, 1939. That right is given when the wife fails to sue within six months, if there are no minor children; subject to other exceptions not applicable here.
Since the administrator may act only "if there be no husband, or wife, minor child or minor children, . . . or if the deceased be an unmarried minor and there be no father or mother," a presumption arose when the administrator (after the wife's cause became barred) sued "for the benefit of the next of kin" that he was acting for those interested, other than as minor children. After six months and within a year appellants were apprised of the status of the law and the pleadings, but they did not, within a year, amend the complaint by alleging the existence of minor children of the decedent, and therefore incapacity of the administrator to sue.
Barker v. The Hannibal & St. Joseph Ry. Co., 91 Mo. 86, 14 S.W. 280, is in point. While the statute considered in that case has been changed in some respects, the widow's right to sue was restricted to six months, and the general limitation was one year.
After mentioning that damages for a tort to the person resulting in death were not recoverable at common law, nor could husband or wife, parent or child, recover any pecuniary compensation from the wrongdoer, the statutory remedy was discussed. The court said:
At page 93 of the opinion it is said:
In Goldschmidt et al. v. Pevely Dairy Co. et al., 341 Mo. 982, 111 S.W.2d 1, there is this statement:
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