Fenton v. Sinclair Refining Co.
Decision Date | 05 February 1952 |
Docket Number | No. 34917,34917 |
Citation | 240 P.2d 748,206 Okla. 19 |
Parties | FENTON v. SINCLAIR REFINING CO. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A domiciliary administrator appointed under the laws of Oklahoma may maintain an action in the Oklahoma courts for wrongful death arising outside the State of Oklahoma, where the statutes of the state where the injury occurred authorize suit by an administrator.
2. The necessary allegations of the laws of the State where the cause of action arose go to the statement of a cause of action and cannot be raised under a demurrer questioning the plaintiff's legal capacity to sue.
I. D. Moseley, Tulsa, Robert W. Raynolds, John M. Wheeler, and John Wheeler, Jr., all of Tulsa, for plaintiffs in error.
Ralph W. Garrett, Robert L. Imler, I. L. Lockewitz, and Dudley C. Phillips, all of Tulsa, for defendant in error.
This action was commenced by William Fenton as administrator of the estate of Noble T. Rush, deceased. The petition alleges the death of Noble T. Rush at or near Cincinnati, Ohio, and the representative capacity of plaintiff. It further alleges that decedent left surviving his widow and three minor children, and asserts that the action is maintained for the benefit of said widow and minor children.
The petition also alleges that decedent was employed as an airplane pilot by the defendant corporation on October 7, 1946. The plane was based in and serviced in Tulsa, and all flights originated there. Negligence in the failure to keep the airplane in proper repair was asserted and that as a result thereof the death of Rush was caused. The accident and death occurred about two miles southwest of the Cincinnati, Ohio, airport on May 8, 1948.
A demurrer on the ground that plaintiff had no legal capacity to sue was sustained. The plaintiff appeals.
The determinative questions are: Can an Oklahoma administrator maintain an action for wrongful death, arising outside the State of Oklahoma, if the statutes where the cause arose authorize suit by an administrator, and, if so, does his failure to plead the foreign statute giving him the right to maintain such action render his petition demurrable on the ground that he has no legal capacity to sue?
The petition does not disclose where the administrator was appointed. It is stated in the briefs, however, that the administrator is a domiciliary administrator appointed in Tulsa County, Oklahoma. The briefs also assert that the injury and death occurred in Kentucky. We, therefore, assume that both of these statements are correct.
The Oklahoma statute authorizing an administrator to sue for wrongful death is 12 O.S.1951 § 1053. This statute was originally adopted from Kansas, but substantial changes have been made by amendment. Prior to the adoption of the statute here it was construed by the Supreme Court of Kansas in McCarthy v. Chicago R. I. & P. R. Co., 18 Kan. 46, and by that court held to have no extra-territorial force. It was held that such statute did not confer the right on a Kansas administrator to sue for wrongful death from an injury inflicted in Missouri where the Missouri statute did not authorize suit by an administrator. Although this construction by the Kansas court is admitted by the plaintiff in error it is contended such construction has never been adopted in Oklahoma, and that in fact the statute has had a different construction here.
The McCarthy opinion carefully pointed out that the statute in Kansas fixed the amount of the damages and also limited same to the use of the widow and children or next of kin, as well as take away the right of the administrator to sue for the benefit of the estate generally. Apparently considerable importance was attached to the provision of the statute limiting the amount of the recovery. In a quotation therein contained the Kansas Court carefully noted that the recovery was a 'statute penalty', by reason of such limitation in the recovery. Oklahoma has eliminated the limitation on the amount of recovery and allows recovery to the extent of the damage. The statute here has always been regarded as remedial and the recovery fixed by the pecuniary loss. 'In order to maintain the action, the existence of the beneficiaries named in the statute and the pecuniary loss to them must be alleged and proved.' Missouri, K. & T. Ry. Co. v. Canada, 130 Okl. 171, 265 P. 1045, 1047, 59 A.L.R. 743.
The rule of the McCarthy case has been changed by statute in Kansas. The correctness of the decision has also been questioned by Mr. Justice Brewer, who participated in the disposition of the case while a member of the Kansas Supreme Court, in his decision in Hulbert v. City of Topeka, C.C., 34 F. 510, after his appointment to the Federal bench. The McCarthy case has also been criticized in Dennick v. Central R. R. Co., 103 U.S. 11, 26 L.Ed. 439. It was repudiated by this court in St. Louis & S. F. R. Co. v. Goode, Admr., 42 Okl. 784, 142 P. 1185, 1191, L.R.A.1915E, 1141, in which we said:
The provision of the statute limiting the amount of recovery which was apparently...
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...H.R. 6463, 77th Cong., 2d Sess. 9. 30 Gochenour v. St. Louis-San Francisco R. Co., 205 Okl. 594, 239 P.2d 769. See Fenton v. Sinclair Refining Co., 206 Okl. 19, 240 P.2d 748. 31 Supra, 369 U.S., pp. 12—13, 82 S.Ct., pp. 593—594 and cases cited. See also Carroll v. Lanza, 349 U.S. 408, 75 S.......
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