Davis v. Pullium, 43008

• Decision Date: 13 April 1971
• Docket Number: No. 43008,43008
• Citation: 484 P.2d 1306,1971 OK 47
• Parties: Mary Louise DAVIS, Plaintiff in Error, v. Hunter N. PULLIUM, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1306

484 P.2d 1306

Mary Louise DAVIS, Plaintiff in Error, v. Hunter N. PULLIUM, Defendant in Error.

No. 43008.

Supreme Court of Oklahoma.

April 13, 1971.

Rehearing Denied May 25, 1971.

Syllabus by the Court

1. A convicted felon under a life sentence who has not been pardoned may bring an action for personal injury, and the State's statutory pronouncement of 'civil death' is no defense.

2. Argument by counsel to jury of amount received by him from a governmental agency for a similar disability is highly improper and reversible error, except where plaintiff can affirmatively show that the improper argument tesulted in no determent or harm to the defendant, and that the verdict would have been the same without the error.

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

Action by plaintiff, a service station attendant, for personal injuries received when he was servicing defendant's automobile. From a jury's verdict in favor of plaintiff, defendant appeals. Affirmed.

Duvall, Head, McKinney & Travis, Oklahoma City, for plaintiff in error.

Greer & Greer, H. W. Conyers, Jr., Tulsa, for defendant in error.

HODGES, Justice.

Is 'civil death' a legal defense to a personal injury action?

Title 21 O.S., 1961, Section 66 provides:

'Civil death.

'A person sentenced to imprisonment in the state prison for life, is thereby deemed civil dead.'

Plaintiff, a service station employee, alleges that while he was checking the oil in the power steering in the defendant's automobile, the defendant carelessly and negligently started the engine of the car and plaintiff's hand was sucked or pulled into the area between the fan belt and the pulley, resulting in serious injuries to his right hand.

Defendant denied generally plaintiff's allegation and among other defenses, contended that plaintiff as a convicted murderer under a life sentence had no right to bring this action, citing the above statute. After serving a period of time in a penal institution, plaintiff was paroled, but not pardoned. At the time of his injury plaintiff had been paroled for seven years.

Upon trial, the jury returned a verdict in favor of the plaintiff in the amount of $15,000.00 and defendant has appealed.

Plaintiff's alleged demise was best answered by his personal appearance at the trial. Even though the State had pronounced him 'civilly dead', he was allowed his mortal existence. Perhaps, we should do the same. Stripped of his civil rights, he nevertheless remains a person and a citizen. Even naked citizenship alone is meaningful and priceless. While a convicted felon may be disenfrancised, denied the right to hold office or otherwise not allow to participate in matters of government, or to enjoy the full fruits of citizenship, he nevertheless cannot be regarded as human waste. Constitutionally, he still enjoys matters of self-preservation. Actions affecting his existence, safety and personal liberties are natural rights which are fully and perpetually protected. 'This view is in accord with modern day decisions and penal reforms, which have moved away from the punitive concepts of the early common law.' See 38 Okl.Bar Journal p. 643, Dr. Maurice H. Merrill, Oklahoma & the Uniform State Law Program (1966).

A literal interpretation of the statute, as advanced by the defendant, could produce preposterous arguments and conclusions. One might even assert the same defense when charged with the crime of murder of a person civilly dead, or one under a sentence of 'civil death' may refuse to pay income taxes on the theory that only the living are required to pay. In Byers v. Sun Savings Bank, 41 Okl. 728, 139 P. 948 (1914), we said in refusing a literal interpretation of a similar statute:

'The language of these statutes, in the absence of other recognized and established principles of law, would seem to divest a citizen of all rights whatsoever and render him absolutely civiliter mortuus, but the principles of law which this verbiage literally imports had its origin in the fogs and fictions of feudal jurisprudence and doubtlessly had been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government. At any rate, the full significance of such statutes have never been enforced by our courts for the principal reason that they are not of harmony with the spirit of our fundamental laws and with other provisions of statutes.'

Article 2 of the Oklahoma Constitution, Section 6 provides:

'The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administrated without sale, denial, delay or prejudice.'

This constitutional mandate has made our course sure and certain.

We answer the posed question with an emphatic 'no'. Civil death is Not a defense to a personal injury action. Rumors of plaintiff's death are greatly exaggerated.

Defendant next complains of the trial court's refusal to give defendant's requested instruction on custom. One of plaintiff's witnesses was a service station operating who testified that the procedure used by plaintiff in servicing defendant's automobile was in keeping with the custom performed by other service station attendants in the area exercising due care. Defendant states that custom is not conclusive on the issue of due care and cannot be considered by the jury on the issue of primary negligence, but rather in this instance is relegated to the role of a defense to contributory negligence. Sanders v. C. P. Carter Construction Co., 206 Okl. 484, 244 P.2d 822 (1952). Defendant argues that without an instruction on this fundamental law we have no way of knowing whether or not the jury properly restricted their consideration of such evidence to the issue on contributory negligence or erroneously considered the evidence as relevant to the issue of primary negligence.

Custom was not introduced to show primary negligence. Its purpose was to answer defendant's allegations of contributory negligence and lack of due care. One of defendant's principal defenses was that plaintiff himself was guilty of negligence which caused or contributed to the accident. Defendant vigorously argued to the jury plaintiff's failure to do that which an ordinarily prudent person would have done under similar circumstances.

While we may concede error by the trial court in refusing to give the requested instruction, we fail to see how the defendant was prejudiced. After considering all of the evidence, it is obvious, even to a jury, that plaintiff's evidence concerning custom of the trade was presented in an effort to refute defendant's allegation and charge of contributory negligence. Otherwise the evidence has no meaning or purpose. Certainly the jury did not consider such evidence on plaintiff's allegation of primary negligence by the defendant, who was not engaged in that business or trade. Also, it does not appear the jury considered custom as conclusive on the issue of due care by plaintiff. Other evidence was available to establish plaintiff's showing of due care, including exhibits and a visual view by the jury of the car's engine and mechanism under the hood. Viewed in this...