Baltimore American Ins. Co. of New York v. Cannon
| Decision Date | 19 October 1937 |
| Docket Number | 27637. |
| Citation | 73 P.2d 167,181 Okla. 244,1937 OK 572 |
| Parties | BALTIMORE AMERICAN INS. CO. OF NEW YORK v. CANNON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 16, 1937.
Syllabus by the Court.
1. By virtue of section 568, O.S.1931 (12 Okl.St.Ann. § 1051), a right of action for injury to personal property survives the owner of the property. The proceeds of a recovery had in such an action become an asset of the decedent's estate.
2. Section 570, O.S.1931 (12 Okl.St.Ann. § 1053), creates a right of action for damages for death by the wrongful act or omission of another, to be prosecuted for the exclusive benefit of the beneficiaries named therein. The proceeds of a recovery had in such an action do not become assets of the decedent's estate.
3. The two actions, although prosecuted by the same personal representative, are not in the same right; and hence a recovery and satisfaction in one case is not a bar to recovery in the other.
4. Where a cause is tried to the court without the intervention of a jury, it is presumed that in rendering the judgment the court disregarded any incompetent testimony or evidence which may have been introduced; and, where the competent evidence introduced supports the judgment of the court, such judgment will not be reversed because of the introduction of incompetent evidence, which the court has presumably disregarded.
Appeal from Court of Common Pleas, Oklahoma County; Charles W Conner, Judge.
Action by Ed Cannon, administrator of the estate of W. O. Cannon deceased, against the Baltimore American Insurance Company of New York. Judgment for plaintiff, and defendant appeals.
Affirmed.
Rittenhouse Webster & Rittenhouse, of Oklahoma City, for plaintiff in error.
Butler Brown & Rinehart, of Oklahoma City, for defendant in error.
The Baltimore American Insurance Company of New York issued its policy of insurance to W. O. Cannon against damage by collision to a Chevrolet automobile owned by Cannon. The policy was for a term commencing at noon on September 4, 1933, and expiring at noon on September 4, 1934; and it contained, among other things, a subrogation clause, as follows: "This company may require from the Assured an assignment of all right of recovery against any party for loss or damage to the extent that payment therefor is made by this company."
On May 7, 1934, while said policy was in effect, said automobile was damaged by a collision with a school bus driven by one L. A. Imel. In the collision, W. O. Cannon received personal injuries, and thereafter died on the same day the collision occurred. He left surviving him his mother, and brothers and sisters.
On or about August 14, 1934, Ed Cannon, a brother of W. O. Cannon, was by the county court of Hughes county, Okl., appointed administrator of the estate of W. O. Cannon, and thereafter, said administrator, as such, brought an action in the district court of Hughes county, Okl., in which he sued L. A. Imel for the wrongful death of W. O. Cannon, growing out of the aforementioned collision. Trial of the case resulted in a judgment being rendered for the plaintiff and against Imel. The judgment became final, and was fully paid and satisfied.
Thereafter, and on November 14, 1934, said administrator, as such, commenced this action in a justice of the peace court in Oklahoma county against the Baltimore American Insurance Company, alleging that said company was liable on the policy aforementioned for payment of the damage done to W. O. Cannon's automobile in the collision aforementioned, and praying for judgment in the amount of $150. The trial which followed was before the court, without a jury, and resulted in judgment for the plaintiff, for the full amount for which he had sued. The defendant, by appeal, brought the case to the court of common pleas of Oklahoma county. In that court, after trial before the court without a jury, judgment was rendered in favor of the plaintiff for $120; and, from this judgment, said defendant has appealed.
In this appeal it appears as being contended by the plaintiff in error, Baltimore American Insurance Company, that the clause in relation to subrogation, contained in the policy which it issued to W. O. Cannon, entitled the company to an assignment of the right of recovery against L. A. Imel for the damage done to W. O. Cannon's automobile, but that an assignment of such right to the company by the administrator would be of no avail, for the reason that the judgment which the administrator obtained against Imel in the district court of Hughes county "constituted a bar to any action by Cannon (the administrator) or his assignees for the damage to the automobile in question."
The right of action for wrongful death is created by section 570, O.S.1931 (12 Okl.St.Ann. § 1053). Said section provides: (Rev. Laws 1910, Section 5281)
Under certain conditions the widow of the deceased may institute and maintain the action provided in section 570, supra. Section 571, O.S.1931; Rev.Laws 1910, § 5282 (12 Okl.St.Ann § 1054); and in Smith et al. v. Chicago, R.I. & P. Ry. Co., 42 Okl. 577, 142 P. 398, 399, this court had under consideration the question whether, in an action under...
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