{ "id": 1428428, "name": "Dicken v. Missouri Pacific Railroad Company", "name_abbreviation": "Dicken v. Missouri Pacific Railroad", "decision_date": "1934-03-12", "docket_number": "4-3378", "first_page": "1035", "last_page": "1041", "citations": [ { "type": "official", "cite": "188 Ark. 1035" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "168 S. W. 1068", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "113 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537568 ], "opinion_index": 0, "case_paths": [ "/ark/113/0380-01" ] }, { "cite": "140 S. W. 716", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "100 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312284 ], "opinion_index": 0, "case_paths": [ "/ark/100/0504-01" ] }, { "cite": "123 S. W. 771", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "92 Ark. 600", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548602 ], "opinion_index": 0, "case_paths": [ "/ark/92/0600-01" ] }, { "cite": "41 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896214 ], "opinion_index": 0, "case_paths": [ "/ark/41/0149-01" ] }, { "cite": "170 S. W. 562", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536322 ], "opinion_index": 0, "case_paths": [ "/ark/114/0526-01" ] }, { "cite": "229 U. S. 156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3665662 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/229/0156-01" ] }, { "cite": "226 U. S. 570", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8288845 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/226/0570-01" ] }, { "cite": "57 S. W. (2d) 818", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 1082", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726962 ], "opinion_index": 0, "case_paths": [ "/ark/186/1082-01" ] }, { "cite": "240 S. W. 421", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362298 ], "opinion_index": 0, "case_paths": [ "/ark/153/0240-01" ] }, { "cite": "10 S. W. (2d) 894", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1396939 ], "opinion_index": 0, "case_paths": [ "/ark/178/0103-01" ] }, { "cite": "122 S. W. 116", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "92 Ark. 102", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548583 ], "opinion_index": 0, "case_paths": [ "/ark/92/0102-01" ] } ], "analysis": { "cardinality": 585, "char_count": 11052, "ocr_confidence": 0.492, "pagerank": { "raw": 1.5857954275022366e-07, "percentile": 0.6812038076351169 }, "sha256": "2ffd8425692a0937fb6a0f8c993833137bb592b98263b51e1cc74b9c3ee1858b", "simhash": "1:0162d714aeae7459", "word_count": 1861 }, "last_updated": "2023-07-14T22:44:11.517500+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dicken v. Missouri Pacific Railroad Company." ], "opinions": [ { "text": "Johnson, C. J.\nTo compensate an injury, which resulted in death to Chester Dicken, this suit was instituted by appellant, Mattie Dicken, widow of deceased, against appellees, Missouri Pacific Railroad Company and the Standard Gravel Company, in the Nevada Circuit Court.\nIn effect, the complaint alleged that the Standard Gravel Company is a domestic corporation, and the Missouri Pacific Railroad Company is a foreign railway corporation, authorized to do business in this State. That on and prior to said second day of September, 1933, plaintiff\u2019s husband, Chester Dicken, was in the employ of defendant, Standard Gravel Company, engaged in helping to load on the cars of defendant, Missouri Pacific Railroad Company sand and gravel to be transported over the lines of railroad owned and operated by both of said defendants, as heretofore alleged. That, after two of said cars were loaded with sand and gravel, the engineers in charge of said locomotive of defendants was ordered by defendant to move said loaded cars from said gravel plant over said short line of railroad, to a point near the track of the defendant, Missouri Pacific Railroad Company, where same was to be unloaded, to be used for repairing the track or roadbed of said short line of railroad. That it was the duty of all of the employees of defendant, Standard Gravel Company, including Chester Dicken, to go upon said gravel cars and ride same to the point where the sand and gravel was to be unloaded for the purpose aforesaid.\nThat one of said cars owned by defendant, Missouri Pacific Railroad Company, then and there being transported over said short line of railroad, and which was loaded with sand and gravel, was equipped with a trap door or flooring controlled by certain cogs, chains and gearing which held the bed of the car intact, until ready to be dumped by releasing the dog or a trigger which would release the bed of the car and permit the sand and gravel to be discharged upon the track or roadbed beneath.\nThat, shortly after said locomotives and cars were placed in motion, and while same were being transported to the point on said short line of railroad where same were to be unloaded as aforesaid, the trap door or bed of said car loaded with sand and gravel suddenly collapsed and fell from its position, permitting the load of sand and gravel, upon which said 'Chester Dicken was riding, to fall through upon the track, carrying with it the said Chester Dicken, and causing him to be run over by said gravel car and killed.\nThe prayer was for compensation in the sum of $3,000.\nAppellees answered the complaint and affirmatively alleged a defect of parties plaintiff in that appellant was without authority under the law to prosecute or maintain the suit. After the filing of appellees\u2019 answers, appellant amended her complaint by alleging that no letters of administration had been issued upon the estate of her deceased husband, and that the deceased left no children or father or mother surviving; that deceased left no collateral heirs surviving him, except one half-brother, Isaiah Dicken, and one half-sister, Arminta Dicken Houston. Thereupon the half-brother and sister of deceased intervened in said cause and were made parties plaintiff.\nAt the conclusion of appellants\u2019 evidence, a verdict was directed by the trial court in favor of appellees, and against appellants, and a judgm\u00e9nt was accordingly entered, from which this appeal is prosecuted.\nBecause of the views hereinafter expressed, we deem it unnecessary to detail the testimony introduced upon the trial.\nThe decisive issue is: Can appellants, the widow and heirs at law of Chester Dicken, maintain this suit? Or does the alleged cause of action rest exclusively in the personal representative of the deceased? . In determining this question, it must be remembered that at common law this cause of action, as alleged by appellants, did not survive the deceased, therefore the survival of said cause of action rests solely upon statutory law.\nThe first statutory law in this State on the subject here under consideration was enacted by the Legislature of 1883 and now appears as \u00a7\u00a7 1074 and 1075, Crawford & Moses\u2019 Digest.\nSection 1075 provides: \u201cEvery such action shall be brought by, and in the name of, the personal representatives of such deceased person, and, if there be no personal representative, then the same may be brought by the heirs at law of such deceased person, etc.\u201d\nUnder this provision of the statute, a suit arising under \u00a7 1074, Crawford & Moses\u2019 Digest, must be prosecuted and maintained by the personal representative of the deceased, if one there be, and, if none, the suit may be maintained by the widow and heirs at law. St. L., I. M. & S. Ry. Co. v. Corman, 92 Ark. 102, 122 S. W. 116, and Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. (2d) 894.\nThe above sections of the statute remained unimpaired and not amended up to and until 1911, at which time \u00a7 7138, Crawford & Moses\u2019 Digest, was enacted. This section of the statute was construed in Murphy v. Province, 153 Ark. 240, 240 S. W. 421, and we there held, quoting from the fourth headnote:\n\u201cCrawford & Moses\u2019 Digest, \u00a7 7138 et seq., known as the Railroad Hazards Act, repealed the Lord Campbell\u2019s Act, so far as the two acts were necessarily inconsistent, though the former act provides that it shall not be held to limit the duty of common carriers by railroads or impair the rights of their employees in the existing laws of the State.\u201d\nIn the more recent case of Faulkner v. Faulkner, 186 Ark. 1082, 57 S. W. (2d) 818, quoting from the third headnote, we held: \u201cThe railroad hazards act (Crawford & Moses\u2019 Digest, \u00a7 7138 et seq.) repealed the general death statute in actions arising under the former act.\u201d\nThus it appears that, in all cases which arise or are prosecuted under the Railroad Hazards Act of 1911, an exclusive remedy .is afforded, and \u00a7\u00a7 1074 and 1075 of Crawford & Moses\u2019 Digest are impliedly repealed to the extent of the later act.\nThus the law stood until 1913, when the Legislature enacted act 175 of 1913, a. part of which now appears as \u00a7 7144, Crawford & Moses\u2019 Digest, which provides:\n\u201cEvery corporation, except while engaged in interstate commerce, shall be liable in damages to any person suffering injury while he is employed by such corporation, or, in case of death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, etc.\u201d\nIt definitely appears that the section of the statute just quoted was patterned after the Federal Employers\u2019 Liability Act. USCA, title 45, \u00a7 51, therefore the rules of construction promulgated by the Federal courts should be given great -weight in construing the provisions thereof.\nThe Supreme Court of the United States has construed the Federal Employers \u2019 Liability Act to mean that all actions arising thereunder must be brought, prosecuted and maintained by the personal representative of the deceased. M., K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135; St. Loms-San Francisco Ry. Co. v. Maude Seale, 229 U. S. 156, 33 S. Ct. 651.\nSince \u00a7 7144, Craivford & Moses\u2019 Digest, is not dissimilar to \u00a7 51, title 45, USCA, we feel constrained and impelled to follow the decisions of the Supreme Court of the United States, and hold that all actions which arise or are prosecuted under act 175 of 1913 by an employee or his widow and heirs at law and against a corporation, which is not engaged in interstate commerce, must be instituted, prosecuted and maintained by the personal representative of the deceased.\nWe are not unmindful of the long-established doctrine of this court that repeals by implication are not favored. The converse of this rule is quite as well established, to the effect that, where two legislative acts relating to the same subject are necessarily repugnant to, and in conflict with, each other, the later controls, and, to the extent of such repugnancy or conflict, repeals the earlier act, whether expressly so declared or not. Hickey v. State, 114 Ark. 526, 170 S. W. 562; Coats v. Hill, 41 Ark. 149; Chicago, R. I. & P. Rd. Co. v. McElroy, 92 Ark. 600, 123 S. W. 771; City of DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716.\nOur conclusion is therefore that all tort actions arising under the laws of this 'State, for the benefit of deceased employee\u2019s widows and heirs at law and against corporations, other than corporations engaged in interstate commerce, must be instituted, prosecuted and maintained by the personal representative of such deceased employee, and to this extent \u00a7 1075, Crawford & Moses\u2019 Digest, is impliedly repealed by \u00a7 7144 of Crawford & Moses\u2019 Digest.\nAppellant insists that we decided this contention otherwise in the Godfrey case, supra. Not so. The effect of the decision in the Godfrey case is that it is not prejudicial error to join the heirs at law with the personal representative in the prosecution of such suits.\nAppellant also contends that we decided this question adversely in the case of Thompson v. Southern Lumber Co., 113 Ark. 380, 168 S. W. 1068. This ease was decided on June 15, 1914, and the statement of facts therein ind\u00edcales that a prior suit had been litigated between the parties over the same subject-matter. The subject-matter over which the litigation arose was an injury inflicted in 1910. Just when the first suit was instituted, whether prior to or after the passage and approval of act 175 of 1913, does not appear. However, since the act of 1913 is not referred to or discussed in the opinion, we conclude that the Thompson suits were instituted prior to the passage and approval of said act. At any rate, the question here under consideration was not presented, discussed or decided by this court in the case referred to.\nIt follows from what we have said that appellants have not the legal capacity to institute, prosecute or maintain this suit against appellee, Standard Gravel Company, and the trial court committed no error in directing a verdict in its behalf.\nIt is not seriously contended that any liability is shown against appellee, Missouri Pacific Railroad Company. The uncontradicted testimony shows that the deceased, Chester Dicten, was in the employ of the Standard Gravel Company, which company had no connection, directly or indirectly, with the railroad company. The only circumstances in evidence tending to connect the Missouri Pacific Railroad Company with the alleged injury to the deceased was that the gravel car, which ran over and upon the deceased, was borrowed from the railroad company by the gravel company. This circumstance is entirely insufficient to establish liability against the railroad company, and the trial court was correct in directing the jury to return a verdict in its favor.\nNo error appearing, the judgment is affirmed.", "type": "majority", "author": "Johnson, C. J." } ], "attorneys": [ "Haynie, Parks & Westfall, for appellant.", "Henry Donham and Mahony & Yocum, for appellees." ], "corrections": "", "head_matter": "Dicken v. Missouri Pacific Railroad Company.\n4-3378\nOpinion delivered March 12, 1934.\nHaynie, Parks & Westfall, for appellant.\nHenry Donham and Mahony & Yocum, for appellees." }, "file_name": "1035-01", "first_page_order": 1053, "last_page_order": 1059 }