Alko-Nak Coal Co. v. Barton

• Decision Date: 19 September 1922
• Docket Number: Case Number: 12225
• Citation: 1922 OK 269,212 P. 591,88 Okla. 212
• Parties: ALKO-NAK COAL CO. v. BARTON et al.
• Court: Oklahoma Supreme Court

1922 OK 269

212 P. 591

88 Okla. 212

ALKO-NAK COAL CO. v. BARTON et al.

Case Number: 12225

Supreme Court of Oklahoma

Decided: September 19, 1922

Syllabus

¶0 1. Death--Action for Wrongful Death--By Whom Action Brought--Petition--Demurrer.

Under section 5282, Revised Laws 1910, the surviving widow of a resident deceased husband whose death was occasioned by the wrongful act or omission of any person, or corporation, may maintain an action for damages, and where the petition of the plaintiff alleges that no personal representative has been appointed by the county court of the county of which the decedent was a resident on the date of his death, such court being the only court having jurisdiction to appoint an administrator of such descendant's estate within the state, held, that a demurrer to the petition upon the ground that the petition failed to allege that no personal representative had been appointed within the state of Oklahoma was properly overruled.

2. Same -- Right of Widow to Sue -- Evidence.

Record examined, and held, that the evidence was sufficient to show that no personal representative had been appointed for the estate of the deceased.

3. Master and Servant--Action for Death of Servant -- Issues--Contributory Negligence and Assumption of Risk.

In and action to recover damages for the wrongful death of the plaintiff's decedent, where it appears from the evidence adduced in the trial of the cause that the death of the decedent occurred while working in a strip-pit mine, taking up rails and ties from behind a steam shovel, moving said rails and ties to the front of said shovel for the purpose of bedding up the track over which said shovel was operated, and that said decedent in going from behind said shovel to the front ordinarily walked on the track used by the defendant coal company in operating its coal train in transporting the coal to the tipple where said coal was unloaded, and the deceased was struck in the back by said coal train, and the plaintiff only relied upon acts of negligence of the defendant in operating said train to establish her cause of action, and the defendant tendered an issue as to whether the deceased was guilty of contributory negligence in carelessly going upon the track of the defendant when the train was approaching, and such defense was submitted to the jury under proper instructions, held, it was not error not to submit an issue tendered by the defendant as to whether the deceased voluntarily assumed the risk.

4. Appeal and Error--Harmless Error--Admission of Evidence.

Record examined, and held, under section 6005. Revised Laws 1910, any error committed in the admission of testimony was harmless.

Error from Superior Court, Okmulgee County: H. R. Christopher, Judge.

Action by Margaret Barton, Nova Barton, Edna Barton, and Neva Barton, against the Alko-Nak Coal Company, a corporation, to recover damages for the wrongful death of George W. Barton. Judgment for the plaintiffs for $ 5,000, and defendant brings error. Affirmed.

Simpson, Hummer & Foster (Con Murphy, of counsel), for plaintiff in error.

W. T. Banks, James Hepburn, and Barclay Morgan, for defendants in error.

KENNAMER, J.

¶1 Margaret Barton, widow of George W. Barton, deceased, for herself and as next friend for her minor children. Nova Barton and Edna Barton, and Neva Barton, adult dependent daughter of deceased, as plaintiffs, commenced this action in the superior court of Okmulgee county, Henryetta division, against the Alko-Nak Coal Company, a corporation, defendant, to recover $ 40,000 damages for the alleged wrongful death of George W. Barton, deceased. The petition alleged and the evidence in the trial of the case established, in substance, the following facts: That the defendant company on the 19th day of March, 1920, was engaged in mining coal near Henryetta, Okmulgee county, Okla., in a mine known as the Alko-Nak strip pit, and that George W. Barton on said date was employed by said company as one of the two track-layers for the big steam shovel that was used by said company in mining coal in the strip pit. That said strip pit of the defendant company was at the time about 60 feet wide from east to west and 500 yards long from the north end to the south end. That on the date of the accident, March 19, 1920, in which George W. Barton was killed, the steam shovel was anchored on the west side of the cut, about 400 yards south of the tipple, said shovel being headed north. That George W. Barton was taking up rails and ties from behind the steam shovel and moving them around to the front to bed up the track for said shovel to run on. That it was the duty of George W. Barton to carry and put down the rails and his part of the ties on the east side of the cut, and on the east side of the anchored steam shovel; that in doing this work he would take a tie in his arms and walk around from behind the anchored steam shovel to the front end of it, and in going from behind the shovel to the front of the same he had to walk on the track used by the small locomotive engine, known as the "dinkey engine", which was used in hauling the cars of coal. That there was not room between the track used in moving the coal cars and the anchored steam shovel for a man to stand, move, or work without getting on the track used by the coal train. It appears that on the date of the accident George W. Barton was walking from behind the steam shovel with a tie in his arms going to the front of the steam shovel, when a string of loaded coal cars were pushed down the track north and struck George W. Barton in the back, knocking him down, three of said loaded cars passing over his body cutting off and crushing both of his legs, from which injuries Barton died in a few minutes.

¶2 The specific acts of negligence alleged by the plaintiffs in their petition charged the defendant company with operating said coal train in a negligent manner in pushing said train of cars down the track, where defendant company knew the employees were working along the track, without any look-out on said cars or the end car, and in employing an incompetent and unlicensed engineer to operate said "dinkey engine", and that the incompetency of said engineer was known, or could have been known, by the defendant. That said engineer was negligent in not keeping a lookout for workmen along the track and in not having signaled such workmen of the approach of the train, and in not having slowed the speed of said train until the deceased could get out of the way. That such acts of negligence were the proximate cause of the death of George W. Barton, deceased.

¶3 The petition of the plaintiffs alleged that they were all residents of Henryetta, Okmulgee county, Okla., and that no personal legal representative or administrator of the estate of the deceased had been appointed by the county court of Okmulgee county, Okla. The defendant company filed a general demurrer to the petition of the plaintiffs, which was by the court overruled and exceptions allowed. Thereafter the defendant company filed an answer, denying generally the allegations of the plaintiffs' petition, pleading contributory negligence and assumption of risk. The plaintiffs filed reply, in substance, a general denial to defendant's answer.

¶4 The cause was tried on the 5th day of October, 1920, before a jury, and after the introduction of the evidence by the plaintiffs, defendant filed a general demurrer to the evidence introduced in support of the plaintiffs' cause of action, which demurrer was overruled and exceptions allowed. Defendant introduced its evidence, and after the court had instructed the jury as to the law of the case, the jury returned a verdict in favor of the plaintiffs in the sum of $ 5,000. Motion for new trial was filed and overruled, and this appeal is prosecuted by the defendant to reverse the judgment of the trial court.

¶5 Numerous errors have been assigned as grounds for reversal of the judgment. The first proposition argued by counsel for the defendant company is that there is no allegation in the petition nor proof in the record that no administrator of the estate of George W. Barton, deceased, had been appointed. We are unable to agree with counsel for defendant in this contention. If the contention of counsel for the defendant is true that the petition of the plaintiffs failed to allege that no administrator had been appointed for the estate of George W. Barton, deceased, and that no proof was offered in support of such allegation, then it necessarily follows that the trial court erred in overruling the defendant's demurrer to the petition and the demurrer to the plaintiffs' evidence. The petition specifically alleged that the plaintiffs were residents of Okmulgee county and that no legal representative or administrator of the estate of George W. Barton, deceased, had been appointed by the county court of Okmulgee county, and counsel for the defendant in the trial of the case admitted that no appointment had been made by the county court of Okmulgee county. It is true that the allegations of the petition and the proof as to the residence and appointment of an administrator should have been more definite and certain. The better practice is as to these statutory requirements, that the allegations of the petition be definite and certain, and that evidence to that effect be introduced directly establishing such facts. But an examination of this entire record makes it apparent that for a long time prior to the death of George W. Barton he had been working for the defendant company in Okmulgee county, and the evidence shows that he resided in said county with his family, consisting of his wife and children, plaintiffs in this action. It is obvious, being a resident of Okmulgee county on the date of his death, that the only court that had jurisdiction to appoint an administrator of his estate was the county court of Okmulgee county, which counsel for the defendant admit never made...