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March 11, 1960


The opinion of the court was delivered by: Henley, District Judge.

On motion of the defendant for summary judgment and on cross motion of the plaintiffs for partial summary judgment.

This is an action brought by Eula Mae Hicks, as administratrix of the estate of Jimmie Hicks, deceased, and by Eula Mae Hicks in her own right, Catherine Hicks Moody, Lorine Hicks Hall, and Hazel Jean Hicks, against the defendant, Missouri Pacific Railroad Company, to recover damages on account of alleged personal injuries to and the death of Jimmie Hicks, which death occurred on October 27, 1956, as a result of an accident which happened in the yards of the defendant at El Dorado, Arkansas, on June 6, 1950.

The complaint alleges that on the date of the accident the deceased, nineteen years of age, was seriously and permanently injured as a result of the negligence of employees of the defendant, that he continuously suffered from his injuries to the time of his death in 1956, and that the injuries were the cause of his death. The plaintiff, Eula Mae Hicks, as administratrix of the estate of the deceased, seeks to recover for the benefit of the latter's estate such damages as will compensate the estate for the alleged physical pain and mental anguish of the deceased resulting from his injuries. Said plaintiff likewise seeks to recover on her own account for her alleged loss of financial contributions from her deceased son and for mental anguish she claims to have sustained by reason of his death. The other plaintiffs, sisters of the deceased, seek to recover for their alleged mental anguish resulting from his death.

Although the deceased was injured in 1950 and died in 1956, this suit was not filed until October 6, 1959, and the defendant has moved for summary judgment on the theory that the action is barred in its entirety by the applicable Arkansas statutes of limitations. The plaintiffs deny the validity of that contention, take the further position that the defendant's motion is frivolous and was filed solely for purposes of delay, and contend that summary judgment should be entered against the defendant fixing liability but leaving open the question of damages. In passing upon these motions the Court accepts as true the allegations of the complaint.

At the outset it is observed that two separate and distinct causes of action are asserted. The first of these seeks compensation for the injuries sustained by the deceased himself. It is brought under the Arkansas survival statute (Ark.Stats. § 27-901), and any recovery thereon would be for the benefit of the estate of the deceased. The second cause involves compensation for the death of the deceased, and is predicated upon the Arkansas version of Lord Campbell's Act, which version, prior to the passage of Act 255 of 1957, was codified as Ark.Stats., Sections 27-903 and 27-904. Act 255 of 1957 is now codified as Ark.Stats., Sections 27-906 through 27-910. Any recovery in the second action would be for the benefit of the next of kin of the deceased.

The dual nature of an action of this type is made clear by the early Arkansas decision in Davis v. Railway, 53 Ark. 117, 13 S.W. 801, 7 L.R.A. 283. See also Morgan v. Rankin, 197 Ark. 119, 122 S.W.2d 555, 119 A.L.R. 1466. In Davis it was said (at pages 125-126 of 53 Ark., at page 802 of 13 S.W.):

    "* * * The English rule, which is commonly followed
  by the courts of the states whose statutes embody the
  provisions of Lord Campbell's act, is that the right
  of action given by the latter statute to the personal
  representative of one whose death has been caused by
  the default of another is created by the statute, and
  is not a continuation of the right of action which
  the deceased had in his life-time, although the new
  right, it has been ruled, arises only by preserving
  the cause of action which was in the deceased. If the
  deceased never had a cause of action, none accrues to
  his representative or next of kin. The right which
  accrued to the deceased revives to his administrator
  by virtue of the former statute [now Ark.Stats.,
  Section 27-901]; the newly-created right results from
  an accrual on the death of the injured party. Both
  actions are prosecuted in the name of the personal
  representative, where there is one, and may proceed
  pari passu without a recovery in the one having the
  effect of barring a recovery in the other, because
  the suits are prosecuted in different rights, and the
  damages are given, upon different principles to
  compensate different injuries. One is for the loss
  sustained by the estate, and for the suffering from
  the personal injury in the life-time of the decedent,
  the recovery in which goes to the benefit of the
  decedent's creditors, if there are any; the other
  takes no account of the wrongs done to the decedent,
  but is for the pecuniary loss of the next of kin
  occasioned by the death alone. The death is the end
  of the period of recovery in one case, and the
  beginning in the other. In one case the administrator
  sues, as legal representative of the estate, for what
  belonged to the deceased; in the other, he acts as
  trustee for those upon whom the act confers the right
  of recovery for the pecuniary loss inflicted upon
  them * * *."*fn1

The Arkansas survival statute, Ark.Stats., Section 27-901, under which the action for the benefit of the estate is brought, provides that: "For wrongs done to the person or property of another, an action may be maintained against the wrong-doers, and such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrong-doer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts." That statute was originally Section 59 of Chapter 4 of the Revised Statutes of Arkansas, and does not appear to have been amended. It is established that actions under said statute are governed by the general three-year statute of limitations appearing as Ark.Stats., Section 37-206, which section also applies to a personal injury suit brought by the injured party during his own lifetime. Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839; Smith v. Missouri Pacific Railroad Co., 175 Ark. 626, 1 S.W.2d 48; St. Louis, I.M. & S.R. Co. v. Robertson, 103 Ark. 361, 146 S.W. 482.

Prior to the 1957 amendment, the Arkansas death statute*fn2 was as follows:

    "27-903. Wrongful death. — Whenever the death of a
  person shall be caused by wrongful act, neglect or
  default, and the act, neglect or default is such as
  would, if death had not ensued, have entitled the
  party injured to maintain an action and recover
  damages in respect thereof, then, and in every such
  case, the person who, or company or corporation
  which, would have been liable if death had not
  ensued, shall be liable to an action for damages,
  notwithstanding the death of the person injured, and
  although the death shall have been caused under such
  circumstances as amount in law to a felony."
    "27-904. Parties — Beneficiaries — Damages —
  Limitation of action. — Every such action shall be
  brought by, and in the name of, the personal
  representatives of such deceased person, and if there
  be no personal representatives, then the same may be
  brought by the heirs at law of such deceased person;
  and the amount recovered in every such action shall
  be for the exclusive benefit of the widow and next of
  kin of such deceased person, and shall be distributed
  to such widow and next of kin, in the proportion
  provided by law in relation to the distribution of
  personal property left by persons dying intestate;
  and, in every such action, the jury may give such
  damages as they shall deem a fair and just
  compensation, with reference to the pecuniary
  injuries resulting from such death, to the wife and
  next of kin of such deceased person. Provided, every
  such action shall be commenced within two [2] years
  after the death of such person."

Section 1 of Act 255 of 1957 (Ark.Stats., Section 27-906) is a substantial reenactment of Ark.Stats., Section 27-903; but certain changes were made in the provisions incorporated in Section 27-904. Significant for the purposes of this case were an extension of the period of limitations to three years, a provision making mental anguish a compensable element of damage, and a provision which calls for an apportionment of the award by court or jury, rather than in accordance with the laws of descent and distribution.

It may be noted that both the original and the more recent death statutes contain their own built-in periods of limitations, and those prescribed periods must be regarded as more than merely procedural. They are parts of the substantive rights created by the statutes. Thus, in Smith v. Missouri Pacific Railroad Co., supra, the Court said (at page 627 of 175 Ark., at page 48 of 1 S.W.2d):

    "* * * At common law, no cause of action for
  personal injury survived the death of the injured
  person, and therefore appellant's right to maintain
  this action depends upon the statutes of this state,
  the injury and death having occurred in this state.
  In the case of Earnest v. St. Louis Memphis & S.E.R.
  Co., 87 Ark. 65, 112 S.W. 141, this court said: `At
  common law a right of action existed for the injury
  of a person, which did not result in death, but no
  right of action existed for

  the death of a human being.' Again in the same case
  the court said: `The general rule is that, where a
  cause of action does not exist at common law, but is
  created by the statutes of a state, it only exists in
  the manner and form and for the length of time
  prescribed by the statutes of the state which created
  it.' The court cited a number of cases sustaining
  this proposition of law. Again the court said in the
  same case: `Therefore we conclude that it is now well
  settled that, where a statutory right of action is
  given which did not exist at common law, and the
  statute giving the right ...

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