127 Ark. 211 | Ark. | 1917
(after stating the facts). It is contended by counsel for the plaintiffs that the judgment first entered in the circuit court in favor of Jessie Treadway, as administratrix of the estate of Robert H. Treadway, deceased, 'for $5,500 amounted to no more than a compromise or settlement of her claim for unliquidated damages against the railroad company.
Counsel for the defendant have agreed with counsel for the plaintiffs in their contention in' this respect, and on that account for the purposes of this decision, we will treat that judgment as a compromise or settlement of an unliquidated claim for damages against the railroad company.
(1) Counsel for the plaintiffs first attack the release or settlement on the ground that it was procured by fraud. In our statement of facts, we have set out the testimony introduced by both parties on this branch of the case. If the testimony of the witnesses for the defendant is to be believed, it is manifest that there was no fraud in. procuring the settlement upon which the judgment was based or upon which the release (as the parties term it) was executed. Reference is made to the statement of facts for this testimony and we do not deem it necessary to repeat it here.
(2) Again it is contended that Mrs. Treadway, as administratrix of the estate of Robert H. Treadway, deceased, did not have the authority to settle an unliquidated claim for damages without especial authority from the probate court, and this we consider to be the principal question in the case. In the case of Pederson v. Delaware, Lackawana & West. Rd. Co., 229 U. S. 146, Ann. Cas. 1914-C 153, the court held that an employee of an interstate railway carrier, killed while carrying a sack of bolts or rivets to be used in repairing a bridge which was regularly in use in both interstate and intrastate commerce, was employed in interstate commerce within the meaning of the Employer’s Liability Act of April 22, 1908, giving a right of recovery against the carrier for the death of the employee while so employed. This decision on this question is binding upon this court. Robert H. Treadway at the time he was injured was engaged in repairing the track of a railroad company which was engaged in interstate commerce. Hence, under the decision of the Supreme Court of the United States just referred to, he was employed in interstate commerce and his cause of action arose under the terms of the Federal Employer’s Liability Act. The Federal statute vests the right of action in such cases in the deceased’s “personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and if none,, then of the next of kin dependent upon such employee.” So the Federal statute being applicable, the right of recovery, if any, was • in the personal representative of the deceased and no one else could maintain the action. St. Louis, S. F. & Texas Ry. Co. v. Seale, 229 U. S. 156, Ann. Cas. 1914-C, 156; American Railroad Company v. Birch, 224 U. S. 547; Mo. Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570, Ann. Cas. 1914-B, 134.
(3) It will be noted that under the Federal statutes, neither the surviving widow nor husband and children of such employee are entitled to maintain the action. It can only be brought by the personal representative for their benefit. There can be no' parties to the suit except the personal representative of the deceased employee and the railroad company. The minor, neither by guardian or next friend, has anything to do with bringing the suit or making a settlement of the claim. Of course, if the settlement is made, the widow and the minor children are affected. Still the statute does not give them any right to bring an action. The personal representative of the deceased alone is vested with this authority. The personal representative is the trustee of the parties to be benefited for the purpose of bringing the suit and conducting it. It is his duty to select counsel to collect evidence and to incur the expenses of a trial. He alone must determine the advisability of accepting a verdict as final. Again, if the nature of the evidence and the circumstances of the case should lead the personal representative to the conclusion that a recovery was doubtful, or that a compromise would be to the best interest of the parties to be benefited, without commencing the action, he has the authority to affect a settlement. The statute contemplates that the entire matter of enforcing the claim and of collecting the money shall be in the personal representative, not only for the protection of the defendant, but also in order that there may be a responsible party to take charge of the interests of those to be benefited. This has been the construction given similar State statutes by the courts of last resort of several States. Foot v. The Great Northern Ry. Co., 81 Minn. 493; Parker v. Providence & Stonington Steamship Co. (R. I.), 14 L. R. A. 414; Olston v. Oregon Water Power Co., 52 Oregon 348; The Pittsburg, Etc., R. Co. v. Gipe (Ind.), 65 N. E. 1034.
This court has recognized the power of the administrator to compromise claims of the estate when done in good faith. In the case of Wilks v. Slaughter, 49 Ark. 235, the court said that an administrator may compromise the debts due the estate of his intestate notwithstanding that section of the Digest of the laws of Arkansas which provides for the approval of such compromise by the probate court.
(4) Therefore, we are of the opinion that an administrator may compromise and accept settlement of an unliquidated claim for damages without special authority from' the probate court. Where the personal representative acts in good faith, those who would impeach his conduct must show fraud or mistake or such gross negligence as would amount to fraud.
It follows that the judgment will be affirmed.