79 Ark. 62 | Ark. | 1906
Mrs. Della McBride brought suit in Sebastian Circuit Court, Fort Smith District, against Mrs. P. Berman, P. Berman, her husband, D. J. Young and A1 Belt, tenants of Mrs. Berman, for damages for the death of her husband, J. W. McBride, whose death was alleged to have been caused by the negligence of the defendants in failing to keep enclosed a stairway leading from the sidewalk to the basement of a building owned by Mrs. Berman, situated in the city of Fort Smith. The case was tried before a jury on issues raised as to negligence of Mrs. Berman, the owner, and the other defendants in their several relations to the property, and the contributory negligence of McBride, and on a question of necessary parties. At the conclusion ■of the evidence the court gave a peremptory instruction to find in favor of defendants, P. Berman, Young and Belt, and Mrs. McBride appeals from that judgment. The jury returned a verdict for $2,000 in favor of Mrs. McBride against Mrs. Berman, and from a judgment entered thereon Mrs. Berman appealed.
'At the threshold of the case is the question of parties. The evidence of the plaintiff, Mrs. McBride, showed these facts: That she was the widow of J. W. McBride; that no children had been born to them, and that McBride’s next of kin were a sister and two brothers. She further testified that McBride did not contribute to the support of his sister or his brothers. There was no-administration upon the estate of McBride. Mrs. Berman, in her appeal, and Berman, Young and Belt in Mrs. McBride’s appeal,, contend that, in the absence of an administrator, the next of kin are necessary parties, and without them that there is a fatal defect in parties preventing Mrs. McBride maintaining the action. Mrs. McBride contends that, having shown affirmatively, and the testimony being uncontradicted, that McBride did not contribute to the support of his next of kin, they have no cause of action, and she is the real party in interest, and only party in interest, and therefore capacitated to sue alone.
The vice in the latter argument is that it allows the maintenance of the suit on testimony which may be contradicted or rebutted by the next of kin, and yet they are not given the opportunity to do so by being made parties, nor their interests protected by an administrator. The result of such construction would be to allow as many suits for the death of a person as there might be parties mentioned in the statute, who receive contributions from him. In this case, for instance, the evidence here shows that McBride contributed most of his earnings to the support of his wife; but the sister and brothers have not been heard, and in subsequent suits, each suing for himself or herself, evidence might be adduced' showing dependence upon him or contributions from him, and thus Mrs. Berman be subjected to a suit by the widow and additional suits by each of the heirs at law for the one negligent act.
Manifestly, these statutes did not intend this splitting of the-cause of action, and contemplate this multiplicity of actions for one act of negligence resulting in death. The statute (sections 6239 and 6290, Kirby’s Digest), commonly called “Lord Campbell’s Act,” intends one action to be brought for the death sued on. This action must be brought by the personal representative, if there be administration. If there is no administration, then the action must be brought by the heirs at law of such deceased person. While the wife is not technically an “heir at law,” yet she is specifically named in this statute as a beneficiary in such action for the recovery for “pecuniary injuries” resulting from the death of the husband, and the term “heir at law” is used in the broader sense of one receiving a distributive part of. the estate and a beneficiary of the action created by these acts. This was the conclusion reached by the United States Circuit Court of Appeals for this (the Eighth) circuit in a case appealed from this State, involving this question. St. Louis, I. M. & S. Ry. Co. v. Needham, 52 Fed. 371, the opinion written by Judge Sanborn. The case was heard before Circuit Judges CaedwEEE and Sanborn and District Judge Shiras. The deference paid to decisions of that court is increased in this instance by the participation and concurrence in the judgment of Judge CaedwEEE, whose long and intimate familiarity with the statutes of Arkansas gives additional weight to the construction placed upon them by the Court of Appeals in this decision. Without following all that is said by Judge Sanborn in deciding this case, the court does follow the conclusion reached; that is, that in default of a personal representative an action brought under Lord Campbell’s act' must make the widow (if there be one) and the heirs at law parties thereto.
It follows from this conclusion that the case of McBride v. Berman must be affirmed, and the case of Berman v. McBride must be reversed, and the cause remanded.
