F. W. Woolworth Co. v. Todd

• Decision Date: 20 February 1951
• Docket Number: No. 33451,33451
• Citation: 204 Okla. 532,231 P.2d 681
• Parties: F. W. WOOLWORTH CO. v. TODD.
• Court: Oklahoma Supreme Court

Page 681

231 P.2d 681

204 Okla. 532

F. W. WOOLWORTH CO. v. TODD.

No. 33451.

Supreme Court of Oklahoma.

Feb. 20, 1951.

Rehearing Denied May 22, 1951.

Syllabus by the Court.

1. A release in writing based upon a valuable consideration which remised, released and forever discharged the alleged tort feasor of and from any and all claims, demands, right or causes of action of whatsoever kind or nature arising from or by reason of any and all known or unknown, foreseen or unforeseen, bodily or personal injuries resulting or to result from a certain accident of a given date, for which the releasor had claimed the alleged tort feasor was legally liable, was broad enough to include a release of any cause of action which releasor might have had for the death of his wife to result from said accident, though the death of his wife had not occurred at the time said release was executed.

2. A settlement and release such as is described in paragraph 1 of this syllabus, executed after the injury to the releasor's wife, but before her death, is not in violation of Sec. 7, Article 23 of the Constitution of the State of Oklahoma, and does not constitute an abrogation of right of action to recover damages for injuries resulting in death, and does not constitute any statutory limitation of the amount recoverable for wrongful death.

Hudson, Hudson, & Wheaton, of Tulsa, for plaintiff in error.

Lawrence Jones, of Bristow, Streeter Speakman, Jr., of Sapulpa, for defendant in error.

Looney, Watts, Ross, Looney & Smith, of Oklahoma City, R. H. Wills, of Tulsa, J. B. Dudley, of Oklahoma City, amici curiae.

O'NEAL, Justice.

This action was commenced in the District Court of Creek County by Eugene Todd, Administrator with Will Annexed of the Estate of Cecillia Patterson, deceased, against F. W. Woolworth Company, a corporation, to recover damages for the alleged wrongful death of Cecillia Patterson, the wife of G. S. Patterson. The trial court overruled defendant's demurrer to the evidence and defendant's motion for a directed verdict, and submitted the case to a jury. Verdict and judgment were for plaintiff and defendant appeals.

The essential facts are undisputed. On December 24, 1936, Cecillia Patterson, while in defendant's store, was injured by a metal frame used for holding signs, which, falling from some distance above, struck her on the left breast, bruising it and breaking loose the cartilage of the sixth rib from the sternum, and injuring other ribs. February 8, 1937 she brought an action against defendant for personal injuries, and on February 2, 1938 obtained a judgment for damages in the sum of $1250.00, which was paid by defendant on February 3, 1938. On the same day the judgment was paid, Cecillia Patterson, by and through Roy F. Ford, her attorney of record, executed a release and satisfaction of said judgment, whereby she acknowledged payment in full of the judgment rendered in said action February 2, 1938, and acknowledged full payment of any and all attorney's fees, liens and claims in said cause and released, acquitted and forever discharged the said defendant of and from all liability to and demands of the plaintiff in respect to said cause, or judgment. Also, on the same day, February 3, 1938, Cecillia Patterson, joined by her husband G. S. Patterson, executed a general release which reads as follows:

'General Release, Husband and Wife.

'Know All Men By These Presents:

'That we, G. S. Patterson and Cecillia Knight Patterson, husband and wife, residing at 1331 South Denver, Tulsa County, Tulsa, Oklahoma and each being of lawful age, for the sole consideration of Sixteen Hundred Fifty and No/100 Dollars ($1650.00), lawful money of the United States of America to us in hand paid, the receipt whereof is hereby jointly and severally acknowledged, have remised, released, and forever discharged and by these presents do, severally and jointly, for ourselves and each of us and for each of our heirs, executors, administrators, and assigns, do hereby remise, release and forever discharge F. W. Woolworth Company and his, her, their, or its successors and assigns, and each of their heirs, executors, and administrators, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, or causes of action, of whatsoever kind or nature, arising from or by reason of any and all known or unknown, foreseen or unforeseen bodily or personal injuries, damages to property, and the consequences thereof, resulting, or to result, from a certain accident which happened on or about the 24th day of December, 1936, for which we have claimed the said F. W. Woolworth Company to be legally liable, which liability is hereby expressly denied.

'In Witness Whereof, we have hereunto set our hands and seals the 3rd day of February in the year one thousand nine hundred thirty eight.'

Thereafter, on April 2, 1946, said Cecillia Patterson died of cancer which, from the testimony of medical experts, resulted from the injury received by her on December 24, 1936. Plaintiff, Eugene Todd, was appointed Administrator and brought this action. The petition alleges that in so doing he is acting as Trustee for Grady S. Patterson, surviving husband and next of kin of deceased. The petition alleges, or sets out, three causes of action. One for damages for the wrongful death, one for pain and suffering of deceased Cecillia Patterson in her lifetime, and within two years next preceding the filing of the action, and one for doctor bills, hospital bills and funeral expenses. The answer of defendant is (1) A general denial; (2) Plea of the statute of limitations; (3) The action by Cecillia Patterson and the judgment obtained therein on February 2, 1938 and the release and satisfaction of said judgment by Cecillia Patterson dated February 3, 1938, and (4) The general release executed by Cecillia Patterson and G. S. Patterson also dated February 3, 1938, quoted above. The trial court in instructing the jury advised the jury that by reason of the contract of settlement, plaintiff could not recover for the pain and suffering of Cecillia Patterson, and that plaintiff could not recover on behalf of the husband for the loss of any services of his wife during her lifetime, or for any medical or hospital bills. The court submitted the cause to the jury on the cause of action for wrongful death, and the cause of action for funeral expenses.

There is some contention that the trial court erred in the admission of...