Wheeler v. Southwestern Greyhound Lines, Inc.
| Decision Date | 03 July 1944 |
| Docket Number | 4-7320 |
| Citation | 182 S.W.2d 214,207 Ark. 601 |
| Parties | Wheeler v. The Southwestern Greyhound Lines, Inc |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Third Division; Lawrence C Auten, Judge.
Affirmed.
Oscar H. Winn, for appellant.
Barber & Henry and Buzbee, Harrison & Wright, for appellee.
This appeal involves the Missouri statute for wrongful death and our enforcement of the same.
The appellants here were the plaintiffs below. Their pleadings alleged that on January 15, 1940, Mrs. Margaret Wheeler became a passenger on a bus of the Southwestern Greyhound Lines, Inc., from New York City to Little Rock, Arkansas that on January 17, 1940, the bus on which Mrs. Wheeler was riding crashed into a building in St. Louis, Missouri, and Mrs. Wheeler was thereby injured; that the Southwestern Greyhound Lines, Inc., was negligent in the operation of the bus and in lack of attention to Mrs. Wheeler; and that she died in Little Rock, Arkansas, on February 4, 1940, survived by her husband, Joe Wheeler, and her children, Melbourne Aiken, Charles Aiken and Lucille Aiken Thines, all of whom joined as plaintiffs. The injury, resulting in Mrs. Wheeler's death, occurred in the state of Missouri. The complaint was filed in this case January 31, 1942; and against the complaint, and amendments thereto, the defendant (appellee here) filed a demurrer which was sustained by the circuit court. The plaintiffs refused to plead further; and from a judgment dismissing the complaint and amendments this appeal followed, challenging the correctness of the court's ruling. We hold that the action of the trial court was correct.
I. At common law there was no right of action for wrongful death, and whatever right now exists is a right created solely by statute. Earnest v. St. Louis, M. & S. R. R. Co., 87 Ark. 65, 112 S.W. 141; Anthony v. St. Louis, I. M. & So. R. R. Co., 108 Ark. 219, 157 S.W. 394; Smith v. Missouri Pacific R. R. Co., 175 Ark. 626, 1 S.W.2d 48; 48 Am. Jur. 35, 38 and 39; 25 C. J. S., § 13, p. 1072.
II. An action for wrongful death is based on the statute of the place where the injury occurred that caused the death, that is, the lex loci delicti. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S.W. 141; Tipler v. Crafton, 202 Ark. 351, 150 S.W.2d 625; 15 C. J. S. 899; Leflar on "Conflict of Laws," § 79. In the case at bar the injury causing the death occurred in Missouri, so the Missouri law governs. Midland Valley Ry. v. Le Moyne, 104 Ark. 327, 148 S.W. 654; American Ry. Express Co. v. Davis, 152 Ark. 258, 238 S.W. 50, 1063.
III. We take judicial notice of the laws of other states (§ 5119, Pope's Digest); so we know judicially that in Missouri there is only one cause of action for wrongful death. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S.W. 141. And the cause of action is contained in §§ 3652 to 3656, inclusive, of the Missouri Revised Statutes of 1939, which are the same sections as 3262 to 3266, inclusive, of the Missouri Revised Statutes of 1929. In Tipler v. Crafton, 202 Ark. 351, 150 S.W.2d 625, we set out certain of the statutes; and there has been no change in these Missouri statutes since that decision. Section 3656 of the 1939 statutes of Missouri reads: "Every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue. . . ."
In Cummins v. K. C. Public Service Co., 334 Mo. 672, 66 S.W.2d 920, the Supreme Court of Missouri said: "It is required by § 3266 of the Revised Statutes of 1929 that every action for wrongful death 'shall be commenced within one year after the cause of action shall accrue.'"
So we reach the conclusion that under the Missouri statute for wrongful death, the action must be commenced within one year from the accrual thereof: that is, the date of death. See Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1. The deceased was injured January 17, 1940, and died February 4, 1940. No action was commenced until January 31, 1942; so the action was barred under the Missouri statute.
IV. The period of limitations (one year) contained in the Missouri statute is a part of the law governing the cause of action and must be enforced in this state. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S.W. 141; 25 C. J. S., § 28, p. 1100. In the treatise on the Conflict of Laws by Robert A. Leflar, it is stated in § 79 thereof:
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