Hill v. Graham
| Decision Date | 06 January 1967 |
| Docket Number | No. 42168,42168 |
| Citation | 424 P.2d 35 |
| Parties | Logan Carl HILL, a minor, Petitioner, v. The Honorable Raymond GRAHAM, Judge of the District Court of Tulsa County, State of Oklahoma, Respondent. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In this State a parent has no right of action against an unemancipated minor child to recover damages for personal injuries allegedly received as the result of such minor's negligence committed in the course of the family relation.
2. The statute, 12 O.S.1961, § 1053, authorizing action for wrongful death to be brought by legal representative of the deceased is limited to actions which could have been maintained by deceased had he lived, and does not extend a right of action to step-mother, who sues in her representative capacity to recover damages for alleged wrongful death from unemancipated minor son of decedent.
3. Where language of statute is plain and unambiguous, there is no room for construction thereof.
Application for this court to assume original jurisdiction and grant a writ of prohibition against the respondent Judge of the District Court of Tulsa County, Oklahoma, enjoining and prohibiting further proceedings in an action there pending. Petitioner's application and writ granted.
Covington, Gibbon & Poe, Richard D. Gibbon, John S. Morgan, Tulsa, for petitioner.
Wesley V. Disney, Paul R. Hodgson, Tulsa, for respondent.
This is an original proceeding seeking a writ of prohibition against Raymond Graham, Judge of the District Court of Tulsa County, prohibiting respondent from proceeding further in Cause No. 111498, styled Goldie Lee Hill, Executrix of the Estate of Carl Jackson Hill, deceased, plaintiff, v. Logan Carl Hill, a minor, defendant, now pending in that court. The defendant in Cause No. 111498 is the petitioner herein, and the district judge is the respondent.
Defendant asserts that the respondent is attempting to exercise jurisdiction over a subject matter as to which there is no cause of action in this State.
The essential facts reflected in the pleadings and the record, upon which the issues are framed, will be set forth hereafter.
The defendant, an unemanciapted minor, is the natural son of deceased by a former marriage. On January 31, 1964, the defendant while driving an automobile, in which deceased was a guest passenger, became involved in an accident resulting in the death of the deceased.
Defendant had been living for about a year and a half in the home of deceased and his second wife (the plaintiff) although defendant's legal custody was in the former wife. Defendant had been employed during the period he resided with deceased and the plaintiff, and defendant retained his earnings.
Plaintiff, in her representative capacity, filed the action in the district court for the wrongful death of her husband. The petition alleged that defendant was guilty of negligence, in the operation of the motor vehicle, had violated certain statutes and applicable ordinances of the City of Tulsa and the defendant's negligence was the proximate cause of the death of decedent.
Petitioner has applied to this Court for extraordinary relief prohibiting respondent from proceeding further, upon the basis that since the decedent had no right to action against the unemancipated minor son, the executrix (step-mother) has no greater right. Petitioner bases his position upon the provisions of the wrongful death statute, 12 O.S.1961, § 1053, and our recent decisions in Tucker v. Tucker, Okl., 395 P.2d 67, and Hampton v. Clendinning, Judge, Okl., 416 P.2d 617. Both cases involved issues concerning relative rights of parents and unemancipated minors in negligence actions.
Respondent asserts the determinative issue simply is:
'Can the duly appointed Executrix of the estate of a decedent maintain an action under 12 O.S.1961 § 1053, against a minor child of decedent?'
On this basis respondent resists the application for relief primarily upon the ground that the cited cases are not controlling in the present case, brought under the cited statute. Non-applicability of Tucker and Hampton, supra, as controlling in the present matter is asserted upon assumed differentiation in factual background in that those cases involved: (1) living persons and actions for personal injuries rather than wrongful death; (2) undisrupted family relationships rather than a family disrupted by divorce and death; (3) damages resulting from ordinary negligence, as compared to gross negligence alleged in this case.
We observe this is the first instance our Court has considered the wrongful death statute, supra, in an action brought by the legal representative of a deceased person against such decedent's unemancipated minor child. Solution of the problem requires consideration and application of the statute, supra, to the case law heretofore announced.
In Tucker, supra, we held:
'A minor child may not recover damages from a parent for personal injuries suffered while unemancipated as a result of said parent's ordinary negligence in the operation of an automobile in which the child was riding as a guest passenger; and the fact that an insurance company has contracted to pay on behalf of the insured parent all sums which the insured parent may become legally obligated to pay does not give rise to a cause of action based on the parent's ordinary negligence where no cause of action exists against the parent if not so insured.'
And, in Hampton v. Clendinning, Judge, supra, we held:
'In this State a parent has no right of action against an unemancipated minor child to recover damages for personal injuries allegedly received as the result of such minor's negligence committed in the course of the family relation.'
Respondent now insists that these cases did not establish a rule of absolute immunity, but apply only to cases of ordinary negligence. Further, upon death of plaintiff's decedent a new or additional right of action was created, which deceased would not have had except for the fact of death, and which became...
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