Cherokee Laboratories, Inc. v. Rogers

Citation1965 OK 8,398 P.2d 520
Decision Date12 January 1965
Docket NumberNo. 40612,40612
CourtSupreme Court of Oklahoma
PartiesThe CHEROKEE LABORATORIES, INC., a corporation, Plaintiff in Error, v. Lee ROGERS, Defendant in Error.

Syllabus by the Court

Absent evidence demonstrating occurrence of negligence in Oklahoma sufficient to amount to or substantially contributing to proximate cause of accident causing plaintiff's decedent's death, as result of an accident in the State of Missouri, the amount of plaintiff's recovery in action in Oklahoma for wrongful death of husband under Missouri statutes creating cause of action for wrongful death and authorizing recovery of not to exceed $25,000.00 therefor, is limited by the amount fixed in such Missouri statutes.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Action instituted in Oklahoma for wrongful death of plaintiff's decedent as a result of the crash of an airplane in Missouri. Affirmed on condition of remittitur: otherwise, reversed.

C. H. Rosenstein, Rucker, Tabor, Shepherd & Palmer, B. W. Tabor, O. H. 'Pat' O'Neal, Tulsa, for plaintiff in error.

Doerner, Stuart, Moreland, Campbell & Saunders, Harry D. Moreland, Jack E. Campbell, Tulsa, for defendant in error.

WILLIAMS, Justice.

The question to be decided in this appeal is whether in an action for damages for wrongful death the law of the state where the fatal injury was inflicted authorizing such an action but limiting the amount of recovery in such a case to a specified maximum sum controls in determining the amount of damages recoverable in the case notwithstanding that the law of the forum contains no such limitation.

Defendant in error initiated the action from which this appeal arises against plaintiff in error in Tulsa County. Our continued reference to the parties is as they appeared in the trial court.

A recitation of the facts necessary to an understanding of the issues involved herein follows. Plaintiff's decedent on July 2, 1959, was one of the passengers aboard defendant's aircraft which took off from the Tulsa Municipal Airport on a trip to Indiana. Approximately forty-five minutes after take-off such aircraft's right engine quit and about thirty seconds later its left engine quit. The airplane then went into a spin and crashed near Republic, Missouri, killing plaintiff's decedent. When full the main tanks each contained forty-four gallons of gasoline and the auxiliary tanks each contained seventy-one gallons. When the aircraft left Tulsa on July 2, 1959, there were approximately thirty-two gallons in the main tanks. Such would be ample fuel for about forty-five minutes of flight. The auxiliary tanks contained enough fuel for approximately three hours and twenty-five minutes of flying. The flying time to the destination in Indiana was three hours. The pilot of the plane was advised as to the fuel supply some time prior to take-off. The procedure recommended for flying the type aircraft here involved is that fuel in the main tanks be used when taking off and until 'cruising altitude' is reached and that at such altitude the selector valves which are 'easily accessible' to the pilot be turned so that the aircraft will then be using gasoline from its auxiliary tanks.

An investigation of the aircraft after the crash showed that the fuel selector valve for the left engine was turned to the main tank and for the right engine it was turned to the 'off position'; that in the left auxiliary tank there was a 'large amount' of gasoline; that in the right auxiliary tank there was 'some fuel'; that in the main tanks 'there was no appreciable fuel'; that the right propeller was in 'a full feathered position', i. e., not in a position to operate the plane.

Defendant demurred to the evidence and moved 'that the [trial] court limit the right of recovery in this case to that expressed in the statutes of the State of Missouri as such statutes being introduced into evidence'. The demurrer and motion were denied and the jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $250,000.00. From judgment on such verdict and the overruling of its motion for a new trial, defendant appeals.

We deem defendant's proposition that 'The trial court erred in failing to follow the Statutes of the State of Missouri and the decisions of this Court requiring recovery to be limited to $25,000.00' dispositive of this appeal.

Plaintiff argues that 'The acts of negligence relied on are: (1) the diminishing of the fuel supply for the main engines, with or without notice to Garrick (pilot of the aircraft here involved); (2) Garrick's taking flight without heeding the information, or without making a check himself; (3) Garrick's failure to switch from main tanks to auxiliary tanks when air borne; and (4) flying until the fuel in his main tanks exhausted. One or more of these occurred in Oklahoma'. For the reasons hereinafter discussed we do not agree with such contentions.

There was no evidence that Mr. Garrick did not have notice of the diminished fuel supply, but rather the evidence was that he was advised of the amount of fuel in the tanks of the airplane. There is no evidence that Mr. Garrick took flight without heeding the information or making a check himself. The evidence was that 'a prudent pilot would have taken off' with the amount of fuel that was in the plane at take-off. There was evidence that the switch from the main tanks to the auxiliary tanks should have been made 'Some time after take-off, the tanks or the selection of the tanks would be made in order to allow enough fuel to land the airplane, drawing fuel from the auxiliary tanks.' Other evidence concerning such a switch was that '* * * a normal situation would be to take off and climb to your desired altitude on the main tanks, then having reached that altitude, switch to the auxiliary tanks, proceed to your destination, and prior to landing, switch back and land on the main tanks.' There was no evidence that the switch from the main tanks to the auxiliary tanks should have been made in Oklahoma. The evidence was of effect that the pilot failed to make the switch after the plane's two engines stopped while over Missouri. Other evidence was that after the engines stopped '* * * a normal prudent pilot could have performed in a better manner in that he could have avoided loss of control; he could have made some effort to land it in an open area'.

Plaintiff does not set forth any evidence showing that defendant was guilty of any negligence occurring in Oklahoma nor have we in our study of the record found any such evidence.

Under the record in this case we are unable to say there was any evidence of effect that the proximate cause of the accident of which plaintiff complains was negligence occurring other than in the State of Missouri.

Section 537.090 of Vernon's Annotated Missouri Statutes provides:

'In every action brought under [wrongful death] section 537.080, the jury may give to the surviving party or parties who may be entitled to sue such damages, not exceeding twenty-five thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death'.

In 92 A.L.R.2d Death--Damages--Limitation--Ruling Law § 3(a) pp. 1185, 1186, is the following language:

'It is the general rule, * * * that questions as to the measure, extent, or amount of damages recoverable in a wrongful death action are to be determined by the law of the place where the wrong causing the death occurred, this rule being generally founded upon the view that the measure, extent, or amount of damages for wrongful death pertains to a matter of the substance of the right to recovery, which should be governed by the law of the place wherein the cause of action arose.'

Section 15(a) of 92 A.L.R.2d p. 1218, supra, states:

'In each of the following cases, involving a death arising from a wrong done in a state other than the forum, it was held that the provision in the death statute of the foreign state limiting the amount of recovery in such a case to a specified maximum sum controls in determining the amount of damages recoverable in the case, notwithstanding that the death statute of the forum contains no such limitation'.

Richards v. United States (1962) 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492, is listed as one of the cases applying this rule. That case was an action by the personal representatives of passengers killed when an airplane crashed in Missouri when en route from Tulsa to New York City. The suit was brought in Oklahoma against the United States on the theory that the Government through the Civil Aviation Agency had negligently failed to enforce the terms of the Civil Aeronautics Act which prohibited certain practices then being used by the airline in its overhaul depot at Tulsa. In its opinion the U. S. Supreme Court at pages 592, 594 and 595 of the Supreme Court Reporter, said:

'* * * The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties * * *.'

* * *

* * *

'* * * Both the Federal District Court sitting in Oklahoma, and the Court of Appeals for the Tenth Circuit, have interpreted the pertinent Oklahoma decisions [Gochenour v. St. Louis-San Francisco R. Co., 205 Okl. 594, 239 P.2d 769; Miller v. Tennis, 140 Okl. 185, 282 P. 345; and Fenton v. Sinclair Refining Co., 206 Okl. 19, 240 P.2d 748], which we have held are controlling, to declare that an action for wrongful death is based on the statute of the place where the injury occurred that caused the death. Therefore, Missouri's sta...

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