Brookshire v. Burkhart

• Decision Date: 15 October 1929
• Docket Number: Case Number: 18506
• Citation: 1929 OK 428,141 Okla. 1,283 P. 571
• Parties: BROOKSHIRE et al. v. BURKHART et al.
• Court: Oklahoma Supreme Court

1929 OK 428

283 P. 571

141 Okla. 1

BROOKSHIRE et al. v. BURKHART et al.

Case Number: 18506

Supreme Court of Oklahoma

Decided: October 15, 1929

Syllabus

¶0 1. Pleading--Sufficiency of Petition on General Demurrer.

A general demurrer admits the truth of all the facts well pleaded in the petition, and the petition must be liberally construed and all such facts must be taken as true for the purpose of the demurrer, and where a pleading states facts upon which pleader is entitled to any relief under the law, the general demurrer should be overruled.

2. Death--Statutes--Statute on Limitations Against Persons Under Disability Held Applicable in Actions for Wrongful Death.

Sections 186, 190, and 824, C. O. S. 1921, being in the same chapter of the Code of Civil Procedure, and each of said sections being created by the same Legislature at the same time, are in pari materia, and the limitation provided for in the former is applicable to actions provided for in the latter.

3. Same--Clause in Statute on Actions for Wrongful Death Held a Statute of Limitation and not a Proviso.

The clause in section 824, C. O. S. 1921, "That the action must be commenced within two years," is a statute of limitation and not in the form of a proviso upon the exercise of the right of action granted.

4. Limitation of Actions--Fraudulent Concealment of Facts as Implied Exception to Statute of Limitations.

Fraudulent concealment constitutes an implied exception to the statute of limitation, and a party who wrongfully conceals material facts and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud.

5. Same.

If the fraud itself be secret in its nature, and such that its existence cannot be readily ascertained, or if there be fiduciary relations between the parties, there need be no evidence of a fraudulent concealment other than that implied from the transaction itself.

Error from District Court, Osage County; Jesse J. Worten, Judge.

Action by John Brookshire et al. against Ernest Burkhart et al. Judgment for defendants, and plaintiffs appeal. Reversed in part and affirmed in part.

Gray & Palmer and Edw. A. Jacobson, for plaintiffs in error.

Hamilton, Gross & Howard, for defendants in error W. K. Hale and John Ramsey.

Moss, Searcy, Montgomery & Young and Hubler & Hubler, for defendant in error Ernest Burkhart.

SWINDALL, J.

¶1 This cause comes to this court by petition in error with transcript attached, from the district court of Osage county, Okla., wherein John Brookshire and Roy Brookshire, by his father and next friend, John Brookshire, commenced an action in the district court of Osage county, Okla., against Ernest Burkhart, W. K. Hale, and John Ramsey, defendants, to recover damages for the wrongful death of Nettle Cole Brookshire.

¶2 The second amended petition, being the one here involved, alleges, in substance: That John Brookshire is the surviving husband of Nettle Cole Brookshire, deceased, and that Roy Brookshire is the infant son of Nettle Cole Brookshire, and plaintiff John Brookshire, and plaintiffs are both residents of the state of Oklahoma, and that the residence of Nettie Cole Brookshire, deceased, at the time of her death was at Fairfax, Osage county, Okla., and that no personal representative is or has been appointed for the estate of said decedent, and that Roy Brookshire is the only surviving child of said Nettie Cole Brookshire, deceased, and is a minor of the age of six years; that prior to the 10th day of March 1923, the defendants, Ernest Burkhart, John Ramsey, and W. K. Hale, entered into a conspiracy to cause the death of Nettie Cole Brookshire, and that on or about the 10th day of March, 1923, pursuant to said conspiracy theretofore formed, said defendants wrongfully and unlawfully caused the blowing up by explosives of the home of W. E. Smith at Fairfax, Okla., and that said deceased, Nettie Cole Brookshire, was at that time of the age of 19 years, and was employed by the said W. E. Smith and resided at his home and was at his home at the time of said explosion, and that in and as a result of said explosion, thus wrongfully and unlawfully caused by the said defendants, said Nettie Cole Brookshire was killed and her body badly mutilated; that this cause of action arose wholly within the county of Osage, and state of Oklahoma, and that the plaintiffs had no knowledge or information concerning who were responsible for the injury herein complained of until on or about the 1st day of the year 1926, and that the plaintiff John Brookshire on several occasions soon after the blowing up of the home of W. E. Smith actively endeavored to ascertain the cause of the explosion which blew up the Smith home; that he talked with numerous parties in Fairfax, Okla., and tried to ascertain the cause of the explosion and who was responsible for it, but that he was unable to obtain any information concerning either the cause of the explosion or who was responsible for it, and that numerous people with whom he talked were not inclined to talk and expressed an unwillingness to give him any information concerning it, and were apparently afraid to disclose any information concerning the matter or even talk about it, and that the plaintiffs are and were at all times herein mentioned persons without means and had no money or funds with which to employ anyone to investigate said explosion or its cause, and had no money or funds to employ anyone to investigate or determine who was responsible for the same, and that they had no other means to investigate said matters except by making inquiries, which they did without success, and that it was only after months of investigation by numerous federal and state officials and after the expenditure of vast amounts of money in making such investigation that any information was obtained as to who was responsible for said explosion, and as to what was the cause of the same; and that it was only after said investigation had been made by said federal and state officials, and after the information obtained by said officials had been made public, that these plaintiffs knew or had any means of learning the cause of said explosion, and that it was not until after said investigation by said federal and state officials had been made and after the result of the investigation had been made public that these plaintiffs were able to place responsibility for the same and know that a cause of action existed in their favor and against the defendants.

¶3 That a short time prior to the 10th day of March, 1923, W. K. Hale left Osage county, and state of Oklahoma, and went to the state of Texas, and remained there for a period of not more than 30 days for the purpose of being absent from Osage county, state of Oklahoma, at the time the home of W. E. Smith was to be blown up, and for the purpose of deceiving these plaintiffs and all others as to who was responsible for such explosion, and that at all times after said explosion each of the defendants in this action did any and everything possible and used all means possible to prevent these plaintiffs and others from discovering that they were responsible for said explosion, and by the conduct of said defendants these plaintiffs were prevented from discovering that said defendants had entered into said conspiracy and had caused said explosion, and that by reason of said action of said defendants they are estopped from pleading the statute of limitations against these plaintiffs and are estopped from asserting that the suit was not brought with in the time allowed by statute.

¶4 That on or about the 9th day of June, 1926, the defendant Ernest Burkhart, coconspirator of the defendants John Ramsey and W. K. Hale, pleaded guilty to a charge of murder of W. E. Smith in the district court of Osage county, Okla., said W. E. Smith having been killed at the said time and place and by the same explosion as the said Nettie Cole Brookshire, and admitted that there was a conspiracy entered into between the defendants to cause the death of the said W. E. Smith and the said Nettie Cole Brookshire.

¶5 That by reason of the wrongful and unlawful acts of said defendants and without any fault whatsoever on the part of the plaintiffs, plaintiffs were injured and damaged by the loss of care, and services and protection of said deceased to which they were entitled, and the loss of her support and prospective training for said plaintiff. Roy Brookshire, and that by reason of said unlawful act, the plaintiffs have been damaged in the sum of $ 20,000 by said defendants.

¶6 That by reason of the fact that said death and injury was caused by the wanton, malicious, unlawful, and wrongful acts of the said defendants in utter disregard for the rights of deceased, said plaintiffs are entitled to the sum of $ 20,000 as exemplary damages.

¶7 Separate demurrer was filed by W. K. Hale and John Ramsey, and separate demurrer was filed by Ernest Burkhart, which demurrers were by the court sustained, and the plaintiffs announced in open court that they did not desire to further amend their petition, but desired to stand upon said second amended petition, and the court thereupon entered an order dismissing said second amended petition, to which the plaintiffs and each of them excepted and gave notice that they would appeal to the Supreme Court of Oklahoma, and within the time provided by law filed their transcript with petition in error attached, and said cause is now before this court to review the order of the district court of Osage county sustaining said demurrer.

¶8 A general demurrer admits the truth of all the facts pleaded in the petition, and the petition must be liberally construed, and all such facts must be taken as true for the purpose of the demurrer, and where a pleading states facts upon which pleader entitled to any...