Fenton v. Sinclair Refining Co., 36289

• Decision Date: 23 February 1955
• Docket Number: No. 36289,36289
• Citation: 283 P.2d 799
• Parties: William FENTON, Administrator of the Estate of Noble T. Rush, Deceased, Plaintiff in Error, v. SINCLAIR REFINING COMPANY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 799

283 P.2d 799

1955 OK 45

William FENTON, Administrator of the Estate of Noble T Rush, Deceased, Plaintiff in Error, v. SINCLAIR REFINING COMPANY, Defendant in Error.

No. 36289.

Supreme Court of Oklahoma.

Feb. 23, 1955.

Rehearing Denied May 17, 1955.

Syllabus by the Court.

Tit. 12 O.S.1951 § 99, which provides that where a 'cause of action has arisen in another State * * * between non-residents' of Oklahoma, the period of limitations in said other State shall be applicable, specifically refers to the parties to the cause of action rather than to the parties to any suit or action subsequently brought to litigate it. Therefore, it is not applicable to this death action brought in Oklahoma by a non-resident administrator, as plaintiff, for the benefit of the decedent's widow and children against a foreign corporation.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Action for damages arising out of the death of an Oklahoma man in Kentucky, brought by plaintiff, as administrator of said decedent's estate, for decedent's widow and children, against defendant. From a judgment sustaining defendant's motion for judgment on the pleadings, plaintiff appeals. Reversed and remanded.

I. D. Moseley, Robert W. Raynolds of Moseley & Raynolds, John M. Wheeler, John M. Wheeler, Jr., of Wheeler & Wheeler, Tulsa, for plaintiff in error.

Ralph W. Garrett, Robert L. Imler, Dudley C. Phillips, Truman B. Rucker, Tulsa, for defendant in error.

BLACKBIRD, Justice.

This action was commenced by William Fenton as administrator of the estate of Noble T. Rush, deceased, to recover damages on behalf of said decedent's widow and minor children on account of said decedent's wrongful, instant death in an airplane accident. The defendant named in the action is Sinclair Refining Company, owner of the airplane and, in the administrator plaintiff's petition, the cause of action for the damages is predicated on said company's negligence in failing to keep the airplane in proper repair.

The accident and death occurred, near Ohio as revealed in Fenton v. Sinclair Refining Co., 206 Okl. 19, 240 P.2d 748, in or over the State of Kentucky, on May 8th, 1948. William Fenton, a resident of the State of Maine, was thereafter appointed Administrator of Rush's estate by the County Court of Tulsa County, Oklahoma, (of which decedent was a resident at the time of his death) and Fenton commenced this action in the District Court of said County, on January 11, 1950. These facts, the further fact that neither the plaintiff nor defendant in the action are residents of Oklahoma (both being residents of Maine) and the further fact that in Kentucky the period of limitation for bringing such an action is one year, KRS 1944, sec. 413.140 were made the basis of a motion by defendant for judgment on the pleadings, which motion the trial court sustained; and from its judgment dismissing the action plaintiff has lodged the present appeal. The parties will hereinafter be referred to as they appeared in the trial court.

The correctness of said judgment must ultimately be determined by the proper interpretation of Tit. 12 O.S.1951 § 99, which provides in part as follows:

'Where the cause of action has arisen in another State or country, between non-residents of this State, and by the laws of the State or country where the cause of action arose, an action cannot be maintained thereon by reason of a lapse of time, no action can be maintained thereon in this State; * * *.' (Emphasis ours.)

It is recognized by both parties that the cause of action attempted to be alleged herein arose in Kentucky ('another State'), but, the crucial question, as indicated by the express wording of the above-quoted statute, is: Has the cause of action 'arisen * * * between non-residents of this State * * *' within the meaning of said statute? In this connection, counsel for plaintiff calls our attention to the stipulated facts that the widow and children, for whom plaintiff administrator brings the action, are residents of Oklahoma, and they contend that the cause of action arose between them and the defendant corporation, rather than between the administrator (who they say is only a nominal plaintiff) and said corporation. Both counsel concede that both the party or parties in whose favor the cause of action 'has arisen' as well as the party or parties against whom the cause of action 'has arisen' must be non-residents in order for the statute in question to be applicable. Both counsel also seem to recognize that it is proper to look to the Kentucky law in attempting to determine the matter since the cause of action arose in that State. And, although at one place in their brief, defense counsel cite the case of Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, and confidently predict 'This Court will not consider how Kentucky might decide this matter but will use Oklahoma decisions to reconstruct the legislative intent in connection with the construction of the Oklahoma statute involved * * *', they rely principally for their position that the cause of action arose between the administrator (rather than the widow and children) and the defendant foreign corporation, upon the wording of the Kentucky statute (KRS 1944, sec. 411.130), which they say created the cause of action for wrongful death in that jurisdiction and specifically vested it in the administrator (or other 'personal representative of the deceased'). Said statute reads in part as follows:

'(1) Whenever the death of a person results from an injury inflicted by the negligence or wrongful act of another, damages may be recovered for the death from the person who caused it, or whose agent or servant caused it. If the act was willful or the negligence gross, punitive damages may be recovered. The action shall be prosecuted by the personal representative of the deceased.

'(2) The amount recovered, less funeral expenses and the cost of administration and costs of recovery, including attorney fees not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased in the following order:

* * *

* * *

'(b) If the deceased leaves a widow and children or a husband and children, then one-half to the widow or husband and the other one-half to the children of the deceased.

* * *

* * *

'(e) If the deceased leaves no widow, husband or child, and if both father and mother are dead, then the whole of the recovery shall become a part of the personal estate of the deceased, and after the payment of his debts the remainder, if any, shall pass to his kindred more remote than those above names, according to the law of descent and distribution.'

In view of the history of such statutes in this country, St. Louis & S. F. R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, L.R.A.1915E, 1141; Louisville R. Co. v. Raymond's Adm'r, 135 Ky. 738, 123 S.W. 281, 27 L.R.A.,N.S., 176; Gregory v. Illinois Cent. R. Co., 80 S.W. 795, 26 Ky.Law Rep. 76, and the fact that no action for wrongful death was known to the common law previous to the passage of Lord Campbell's Act, there can be little doubt as to the correctness of counsel's assertion that the above-quoted section created the cause of action in Kentucky. See Annotations, 39 A.L.R. 579. However, it does not necessarily follow that this statute vested the cause of action in the personal representative of the deceased, exclusively, especially in view of the wording of the Kentucky Statute as originally enacted. See Louisville R. Co. v. Raymond's Adm'r, supra. A precise determination of the matter has been rendered difficult by statements found in the opinions of the Kentucky courts. See, for instance, General Refractories Co. v. Mozier, 235 Ky. 252, 30 S.W.2d 952; Wells' Adm'r v. Lewis, 213 Ky. 846, 281 S.W. 996; Spangler's Adm'r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414; City of Louisville v. Hart's Adm'r, 143 Ky. 171, 136 S.W. 212, 35 L.R.A.,N.S., 207; Louisville & N. R. Co. v. Schumarker's Adm'x 112 Ky. 431, 53 S.W. 12. See also the discussion in Henderson's Adm'r v. Kentucky C. R. Co., 86 Ky. 389, 5 S.W. 875, 877, 878. One of the questions involved in the City of Louisville case [143 Ky. 171, 136 S.W. 214] was whether the settlement by Patrick Hart of a death claim arising out of his son Edward's wrongful death and sued upon by the administrator of Edward's estate, had the effect of defeating the administrator's action. There the court held that it did not, but, in the body of the opinion, said, among other things:

'If Patrick Hart had brought an action against the railway company to recover damages for the death of his son, the court upon motion would at once have dismissed it upon the ground that he had no right to maintain it; and yet it is said that he has the right to prevent the only person having authority to institute the action from prosecuting it to a conclusion. There would be little reason for giving the personal representative the exclusive right to institute and maintain an action like this if some other person could defeat his authority by controlling the conduct of the case. Under our statute, the additional reason for denying to a beneficiary the right to settle the claim for damages, and thereby defeat a recovery in an action by the personal representative, exists in the fact that the recovery is charged with certain expenses that the personal representative would be obliged to discharge, but that the beneficiary might not be inclined to pay, and could not be held responsible for. But we do not put our decision that the beneficiary cannot settle the claim and defeat the right of the personal representative upon this ground. We rest it entirely upon the ground that as the statute designated the personal representative as the person who must bring the suit, and who may settle and compromise the demand, no other person can institute the action or settle or compromise it...