Gaither By and Through Chalfin v. City of Tulsa, 53867

• Citation: 664 P.2d 1026,1983 OK 61
• Decision Date: 24 May 1983
• Docket Number: No. 53867,53867
• Parties: Randall Don GAITHER, Deceased, By and Through his next friend, next of kin and mother, Darlene CHALFIN, Appellee, v. The CITY OF TULSA, a municipal corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 1026

664 P.2d 1026

1983 OK 61

Randall Don GAITHER, Deceased, By and Through his next

friend, next of kin and mother, Darlene CHALFIN, Appellee, v. The CITY OF TULSA, a municipal corporation, Appellant.

No. 53867.

Supreme Court of Oklahoma.

May 24, 1983.

Appeal from the District Court of Osage County; Mermon H. Potter, judge.

Appellant appeals from a jury verdict in a wrongful death action brought by appellee (mother), pursuant to 12 O.S.Supp.1975 § 1055, to recover damages for the accidental death of her five year old son.

AFFIRMED IN PART, REVERSED IN PART.

Parks, Beard & Williamson by Curtis A. Parks and Michael J. Beard, Tulsa, for appellee.

Waldo F. Bales, City Atty. of Tulsa by David L. Pauling, Asst. City Atty., Tulsa, for appellant; Morris Flynn, Oklahoma City, on brief.

HODGES, Justice.

The novel issue presented is whether the divorced mother of a deceased minor child may maintain a wrongful death action without joining the natural father or personal representative? Other errors urged on appeal are: the trial court's instructions; admission of incompetent testimony relating to the mother's emotional suffering; admission of "staged" photographs; and failure to reduce the verdict by 40% under Oklahoma's comparative negligence rule.

A sudden rain storm created flooded streets and ditches in Tulsa on July 9, 1977. Randall Don Gaither, a five year old boy, was playing in the water flowing through a bar ditch when he fell through a rotten piece of plywood covering an inlet to a drainage conduit and drowned. The parents of the decedent and the City of Tulsa, appellant, were aware of the opening to the drainage system. The mother, Darlene Chalfin, appellee, filed an action to recover for the death of her son, asserting that the City was negligent in failing to properly secure the inlet with a permanent covering. The City responded that decedent's natural father negligently covered the opening with plywood and that the boy's mother was negligent because she let him play in the water without supervision. The City demurred to the mother's petition, alleging a defect of parties because the father was not a party. Because the mother and decedent's father were divorced at the time of the accident, the trial court overruled the demurrer. The jury found: the plaintiff 40% negligent; the City 60% negligent; and total damages of $262,000.00, which the court awarded to the mother.

I

The City alleges that the trial court committed reversible error prior to trial by recognizing the mother's right to bring the action without joining the father as party-plaintiff. We do not agree; and find that the mother could maintain the wrongful death action independent of the natural father. The action for the wrongful death of an unmarried, unemancipated minor child is permitted pursuant to 12 O.S.Supp.1975 § 1055. ¹ The statute allows the recovery of damages for the wrongful death of a child which were non-existent at common law, and creates and enlarges the substantive rights of the survivors. ²

The determination of proper parties under § 1055 has not been considered previously by this Court. Title 12 O.S.1971 § 1054 ³ provides that an action under 12 O.S.1971 § 1053 ⁴ (wrongful death) may be brought by the personal representative, if one has been appointed; by the widow, if there has been no personal representative appointed; or by the next-of-kin, if there is no widow. Although the subsequent enactment of § 1055 contains no specific reference to § 1054, it seems apparent that it should apply. Because there has been no personal representative appointed or surviving widow in this case, the action must be initiated by the parents ⁵ or an individual parent as next-of-kin. ⁶ The question is, if they are divorced, are both required to join in the action?

In this case, the mother seeks to recover only for those items which inure to her benefit. For the purpose of trial, the amount of money expended in rearing the child and for funeral and burial expenses was stipulated. In addition to pecuniary loss, the mother also has a personal right, independent of all others, to recover for the loss of companionship and love of the child; destruction of the parent-child relationship, and intangible personal injuries which accrue to her alone. Section 1055 permits recovery of damages for the wrongful death of a minor child which were non-existent at common law and non-recoverable under previous wrongful death statutes. The City's argument that the natural father must be joined as a party plaintiff so his potential negligence can be considered by the jury is unfounded. There is no requirement that one be a party to the lawsuit before his negligence may be considered by the jury in the negligence calculations. ⁷ The burden is not on the mother to seek out and bring in other parties who may or may not have standing. The City apparently made no attempt to join the father as party plaintiff, although, under 12 O.S.1971 § 323, ⁸ it most likely could have done so. There is sound public policy for this position. The whim and desire of a father or other next-of-kin could easily dictate the fate of the plaintiff mother. The father could elect to dismiss the suit or refuse to prosecute it with vigor, thwarting the mother's attempt to recover for the loss and damages personal to her and accruing only to her. ⁹

II

The City asserts the trial court committed reversible error by precluding jury consideration of the contributing negligence of the decedent's natural father as a defense to this action. We find that any basis for this complaint was addressed by the instructions given by the court. ¹⁰ The record does not reflect any requested instructions or objections to the instructions concerning this contention. If the record fails to disclose that the appellant saved exceptions to questioned instructions or lack thereof, review is limited to the determination of whether the instructions are free from fundamental error.

III

The City argues that the verdict was actuated by passion, prejudice, mistake, and misapprehension of the jury as a result of the admission of "incompetent testimony relating to plaintiff's emotional suffering and subsequent admission of staged photographs." The mother offered numerous photographs taken nineteen months after the accident, and she asserts the exchange of photographic evidence required by a pretrial order fully disclosed every physical and geographical fact in issue and the additional photographs were merely cumulative and could not have resulted in prejudice. We agree. Introduction of photographs which depicted the location of the accident was necessitated by the defenses presented by the City, especially when it denied responsibility for the care and maintenance of the drainage conduit. The City's contention that the drainage ditch was privately constructed justified the admissibility of the photographs in question. Photographs are admissible in evidence when it is proven that they correctly show the objects surrounding the scene of the accident in substantially the same condition as when the accident occurred and as long as they are not used as a "stage setting" for the purpose of reenacting the accident. ¹¹

IV

The City contends that the court improperly admitted the testimony of the mother's psychiatrist which related to her emotional suffering; and to permit recovery for mental anguish or emotional disturbance in the absence of physical injury to the mother would cause a severe conflict between statutory provisions which govern wrongful death actions. These actions were unknown at common law, and any right of action surviving the decedent exists because of statutory enactment. ¹² Traditionally, the damages were limited to pecuniary benefits specified by statute; and there was no recovery permitted a parent for injury to feelings, mental anguish, loss of society and companionship or destruction of the parent-child relationship. ¹³ This argument has been nullified by the enactment of the 1979 amendment of § 1053 which permits recovery for grief and loss of consortium and companionship to the surviving spouse, children and parents of the decedent. ¹⁴

In an action by a parent for the wrongful death of a child, destruction of the parent-child relationship is an allowable element of recoverable damage pursuant to 12 O.S.Supp.1975 § 1055. The Legislature recognized that the cost-accounting measurement of damages which balanced the value of the services of the child against the cost of support was archaic in a society which is not structured on child labor, or the family chore milieu of a farming community. Today, the injury sustained by a parent as the result of the death of a child is primarily a disruption in emotional and mental well being. ¹⁵ Apparently, Washington and Oklahoma are the only states whose statutes include the phrase "destruction of the parent-child relationship." This phrase has not been construed in Oklahoma. The Washington court defined the statutory phrases "loss of love" and "destruction of the parent-child relationship" to include recovery for parental grief, mental pain and suffering under appropriate circumstances. ¹⁶

For purposes of proving grief, mental anguish or suffering, destruction of the parent-child relationship and loss of love and companionship, expert psychiatric testimony may often be useful and proper, if not absolutely necessary. This testimony is helpful to: 1) provide a reasonably reliable basis for consideration of an award of damages; 2) prevent the trier of fact from relying on mere speculation and conjecture; and 3) prevent resort to legal assumptions and conclusion which have little or no supporting medical or other reasonably reliable data. ¹⁷

V

The City claims that the instructions were defective because the court failed to include a specific provision stating that the amount of damages would be reduced in proportion to the percentage of the mother's...