Burford v. Evans
| Decision Date | 01 December 1942 |
| Docket Number | 30576. |
| Citation | 132 P.2d 653,191 Okla. 555,1942 OK 397 |
| Parties | BURFORD v. EVANS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In the absence of statutory authority for its survival, a cause of action for wrongful death being one of statutory origin abates upon the death of the wrongdoer.
2. Neither 12 O.S.1941, section 1051, nor section 1053, provides for survival of a cause of action for wrongful death upon the death of the wrongdoer.
3. Where, in an action for wrongful death, it appears from the face of the petition that the right to maintain the action does not exist, a plea in abatement should be sustained and the action dismissed.
Appeal from District Court, Lincoln County; Kenneth Jarrett, Judge.
Action by W. J. Evans and Margaret Ethel Evans, as next of kin of Billy Jack Evans, deceased, against Luella E. Burford, as executrix of the estate of William R. Burford, deceased, to recover damages for wrongful death. Plaintiffs had judgment and defendant appeals.
Reversed with directions.
P. D Erwin, of Chandler, for plaintiff in error.
J Berry King and George J. Fagin, both of Oklahoma City, and William A. Vassar, of Chandler, for defendants in error.
This action was instituted by W. J. Evans and Margaret Ethel Evans, hereinafter referred to as plaintiffs, as the next of kin of Billy Jack Evans, their deceased minor son, against Luella E. Burford as executrix of the estate of William R Burford, deceased, hereinafter referred to as defendant, to recover from his estate damages for the death of their said minor son alleged to have been caused by the wrongful act of one J. L. Woolsey, at a time when he was in the employ of the defendant's testator. The said J. L. Woolsey was not impleaded in the action, recovery being sought solely against the estate of William R. Burford, deceased, on the theory that he was the responsible tort feasor under the doctrine of respondeat superior.
The defendant by plea in the nature of a plea in abatement demurrer and objection to introduction of evidence challenged the right of plaintiffs to maintain an action of this nature against the estate of her testator. Exceptions were saved to the adverse rulings of the court thereon. Trial had to a jury resulted in a verdict in favor of plaintiffs in which their recovery was assessed at the sum of $700. Motion for new trial was overruled and defendant has perfected this appeal.
As grounds for reversal of the judgment below the defendant assigns twenty-three specifications of error which are presented under seven propositions. The first proposition submitted, which is, in substance, that an action for wrongful death abates upon the death of the tort feasor and does not survive against his estate, is decisive of this appeal and for this reason we do not consider or discuss any of the other propositions advanced by the defendant.
An action for damages on account of wrongful death was unknown to and did not exist at common law. Such action was created and came into law upon the passage of Lord Campbell's Act in 1846. Similar statutes were thereafter enacted by the States of the Union. Our statute conferring said right is similar to the statute of Kansas and now appears as 12 O.S.1941 § 1053. The Supreme Court of Kansas beginning with the case of McCarthy, Adm'r, v. Railroad Co., 18 Kan. 46, 26 Am.Rep. 742, and consistently thereafter, has construed said statute to be one creating a new and independent cause of action independent of any injury done to a deceased person and which abates upon the death of the wrongdoer and does not survive as against his estate. See, City of Eureka v. Merrifield, 53 Kan. 794, 37 P. 113; Martin v. Ry. Co., 58 Kan. 475, 49 P. 605; Missouri Pac. Ry. Co. v. Bennett's Estate, 58 Kan. 499, 49...
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