Herndon v. St. Louis & S.F.R. Co.

• Decision Date: 16 January 1912
• Citation: 128 P. 727,37 Okla. 256,1912 OK 99
• Parties: HERNDON v. ST. LOUIS & S. F. R. CO.
• Court: Oklahoma Supreme Court

128 P. 727

37 Okla. 256, 1912 OK 99

HERNDON v. ST. LOUIS & S. F. R. CO.

Supreme Court of Oklahoma

January 16, 1912

Syllabus by the Court.

A child, unborn at the time of its father's death but later born alive, is to be considered under the laws of this state as an existing person at the time of its father's death and is therefore a beneficiary and entitled to participate in any damages recovered in an action brought under the statute for wrongfully causing the death of the father.

Where parties have agreed upon the terms of a contract, and in reducing it to writing the language used does not, in fact express the true agreement, upon clear and convincing proof of the mistake equity will afford relief by reforming the contract so that it speak the true agreement.

An employé of a railroad was killed through the alleged negligence of the railroad. He left a widow, who shortly after his death gave birth, alive, to a son. Before the birth of the son the railroad made a contract of settlement and release with the widow; after its birth the widow qualified as administratrix, and brought suit against the railroad in her representative capacity, alleging that her rights as widow had been settled, but that the son had rights as a beneficiary in the cause of action, and that such rights had not been settled for. The railroad answered setting up that the widow was the sole and only heir and the only person entitled to recover, and that she had been fully settled with, and then set out settlement as a complete defense to the cause of action as to the son. A reply was filed to this answer alleging fraud and mistake, and that the true contract of settlement made was only of her individual rights, and that the rights of the child were not settled for, or within the contemplation of either party, and that, if the words of the contract of settlement as used in reducing it to writing were broad enough to embrace the rights of the child, then that such words did not express the true contract, but were inserted through fraud or mistake. Held, that a demurrer to the reply was improperly sustained.

Commissioners' Opinion, Division No. 2. Error from District Court, Choctaw County; D. A. Richardson, Judge.

Action by Carrie Herndon, widow and administratrix of Ben Herndon deceased, against the St. Louis & San Francisco Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Howe & Stanley, of Hugo, for plaintiff in error.

W. F Evans, of St. Louis, Mo., R. A. Kleinschmidt and J. H. Grant, both of Oklahoma City, and Charles E. McPherren, of Durant, for defendant in error.

BREWER C.

This suit was filed in the district court of Choctaw county, Okl., December 4, 1908, by Carrie Herndon, as widow and administratrix of the estate of Ben Herndon, deceased, against St. Louis & San Francisco Railroad Company. The plaintiff in error was the plaintiff below, and the defendant in error defendant below, and the parties will hereafter be referred to as they were known in the trial court.

The petition alleged, in the usual form, the jurisdictional facts, the injury on April 24, 1908, and death of her husband, Ben Herndon, with allegations of negligence as causing it, her appointment as administratrix; that the suit is brought for the sole use and benefit of R. B. Herndon, son of deceased, who was born about four months after the death of the father; that the son was entirely dependent on its deceased father for maintenance, education, training, etc., and further: "(8) Plaintiff states that the defendant company, after the death of said Ben Herndon, and before the birth of R. B. Herndon, settled with the widow of said Ben Herndon for her part of the damages to which she and the unborn child would be entitled under the laws of the state of Oklahoma for the wrongful death of said Ben Herndon; that said settlement was made before the appointment of this plaintiff as administratrix, and with the knowledge on the part of the defendant company of the pregnant condition of said widow, and the child yet unborn, who also was entitled to damage by reason of the wrongful death of his father, Ben Herndon. (9) That this suit is brought by this personal representative for the sole and exclusive benefit of said R. B. Herndon, who is the only child of Ben Herndon, deceased." The petition closes with the usual prayer for damages and judgment.

On March 20, 1909, the defendant filed answer in which appears after general denial the following:

"Defendant admits that on the 24th day of April, 1908, Ben Herndon, the husband of this plaintiff, while in the employ of this defendant, received injuries which resulted in his death on the 30th day of April, 1908. And defendant says that at the time of his death said Ben Herndon left surviving him no issue, but that he left surviving him as his sole and only heir at law Carrie Herndon, his widow, plaintiff in this cause. Defendant further answering says that there has been a full accord, satisfaction, adjustment, and settlement between the parties to this action for all claims for damages or causes of action arising or growing out of the death of said Ben Herndon, in the following manner, to wit: That prior to the issuance of letters of administration to the said Carrie Herndon, and prior to the institution of this suit, the said Carrie Herndon, as the widow and sole heir at law of said Ben Herndon, and the only person entitled to recover from the defendant on account of the death of said Ben Herndon, and the only person entitled to institute a cause of action against said defendant arising and growing out of the death of said Ben Herndon, there being no administrator appointed, did on the 27th day of May, 1908, in consideration of the sum of $2,500 to her paid by the defendant, release and discharge said defendant from any and all claims, demands, or causes of action, which she as the widow of said Ben Herndon might have against said defendant, both for her own account and for the heirs and next of kin of said Ben Herndon, a copy of said release is hereto attached, made a part hereof, and for certainty marked Exhibit A.

'Exhibit A.

Agreement and Settlement.

In consideration of the sum of two thousand five hundred ($2,500.00) dollars, paid by the St. Louis & San Francisco Railroad Company, to Carrie Herndon, the widow of R. B. Herndon, deceased, who was a resident of Hugo, Choctaw county, Oklahoma, and who died on or about April 30th, 1908, from injuries received in an accident on the St. Louis & San Francisco Railroad Company, at Boswell, Choctaw county, Oklahoma, on or about April 24th, 1908, and there being no administrator or executor of his estate, designated or appointed, it is agreed between the said Carrie Herndon, and said railroad company, that all and every claim, demand and cause of action of said Carrie Herndon, as the widow of R. B. Herndon, deceased, both for her own account and for the heirs of said R. B. Herndon, and for his next of kin against said railroad company on account of said injuries and death of R. B. Herndon, her husband, and all damages caused thereby is hereby settled, released, satisfied and discharged in full.

Executed in duplicate at Hugo, Choctaw county, Oklahoma, this 27th day of May A. D. 1908.

Mrs. Carrie Herndon, Widow of said R. B. Herndon, Deceased.

J. H. Boren, A. H. Mansfield, Chas. G. Shull, R. B. Herndon, Witnesses.' "

The reply of plaintiff, to which a demurrer was sustained, is as follows: "* * * Plaintiff admits that she executed a release to the said defendant company releasing said company from any claim or damage for her individual right to damages for the death of her husband, but denies that she ever executed a release, or agreed to execute any release, for the damages to which her then unborn child is entitled by reason of the wrongful death of said Ben Herndon. Plaintiff further states that if the legal effect of the release pleaded by defendant is to cut off the right of her then unborn child to recover damages for the death of his father, Ben Herndon then said release was obtained by the agent and representative of the railroad company by fraud and misrepresentation on the part of said agent, and a misapprehension of law by said plaintiff, of which the said representative of the railroad company was aware at the time of the execution of the release, and which he did not rectify, in this, to wit: That the claim agent and representative of the said defendant company, A. H. Mansfield, called upon her to procure a release for her claim for damages as widow, on the 27th day of May, 1908, and at a time when she was mentally incapacitated by reason of the recent death of her husband, Ben Herndon; that he stated to her 'that she was the only person entitled to any damage by reason of said death, and the only heir of said R. R. Herndon, her husband; that in settling the amount of money to be paid to her was her individual damage, there being no other person entitled to any damage by reason of the said death;' that, relying on the statement of said claim agent, she agreed to settle her individual damage as the widow for $2,500, which was paid her; that, after procuring her consent to settle as aforesaid, on the statement and representations aforesaid said agent and representative of said defendant company prepared the release, which release was to contain the agreement to settle her individual claim for damages as widow; that said release was read over to her, and she signed same, and that the expressions in said release, 'and for the heirs of said R. B. Herndon and for his next of kin,' plaintiff thought referred to herself alone, it having been represented to said plaintiff by said claim agent that she was the only person...