113 Ark. 380 | Ark. | 1914
(after stating the facts). It appears from the pleadings and the evidence that Gladys Thompson, .who was one of the children of Mattie Thompson and Tom Thompson, and an heir of Tom Thompson, was not a party to the suit that had been formerly instituted in the Bradley Circuit Court by Mattie Thompson, for herself as widow and as next friend for her children, Pebble, Yerdie and Tom Thompson, against the appellee for damages alleged to have been sustained by them on account of the alleged negligent killing of Tom Thompson.
“A judgment is conclusive only between the parties and their privies.” Biederman v. Parker, 105 Ark. 86; Doss v. Long Prairie Levee District, 96 Ark. 454; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 409; Updegraff v. Marked Tree Lbr Co., 83 Ark. 157; Albie v. Jones, 82 Ark. 419.
The judgment as set up in the plea of former adjudication, was a personal judgment, and could only bind the parties to that record and their privies. Bigelow on Estoppel, p. 127. Gladys Thompson was not a privy in interest to any of the parties to that suit. Whatever damages she might have been entitled to recover for the alleged negligent killing of her father were given to her by the statute (Kirby’s Digest, § 6290), and her proportionate part of those she would receive by virtue of the statute, independent of the widow or any of the other heirs of her father, Tom Thompson. She was not connected with any of these in any way as to her part of whatever damages the widow and heirs at law of Tom Thompson might have been entitled to recover. She was therefore not a privy in interest to any of them. As she was neither a party nor a privy to the former suit, she was not bound by the judgment therein.
It does not follow, however, that because she is not bound by the proceedings in the former suit, that she is is entitled to recover in this action. In St. Louis, I. M. & S. Ry. Co. v. Needham, 52 Fed. Rep. 371, the circuit court of appeals, through Judge Sanborn, construing the above statute, held, that the widow and all other persons entitled to share in the distribution of the personal estate of the one killed by the wrongful act of another, are heirs at law, and when the -widow, in the absence of personal representatives, brings a suit under the act, she must join all persons having an interest in the subject-matter therein.
And in McBride v. Berman, 79 Ark. 62, following'the construction of the court of appeals, we said, construing the same statute (Kirby’s Digest, § § 6289, 6290): “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 (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. * * *
“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 these decisions as an indispensable prerequisite to the maintenance of a suit under the statute' supra, that the widow and heirs of the person killed by the wrongful act of another shall all be made parties.
It appears as an undisputed fact in this record that Mattie Thompson was the widow of Tom Thompson, and that he bad other children who were his heirs at law, and none of these were made parties. As the making of the widow and other heirs parties was a condition precedent to the maintenance of the suit by the appellant as next friend for Gladys Thompson, the court did not err in dismissing her complaint, although it gave the wrong reason therefor. While the plea of res adjudicata was not technically sustained because the rights of Gladys Thompson had never been adjudicated in any former suit, nevertheless the judgment of the court dismissing her complaint was correct -for the reason we have stated. This court can not reverse a judgment that is right upon the undisputed facts presented in the record, although the trial court may have based its ruling upon an erroneous reason and a misconception of the law.
The judgment of the court dismissing appellant’s complaint and thereby abating the present suit is correct and it is affirmed.