Kali Inla Coal Co. v. Ghinelli

• Decision Date: 08 February 1916
• Docket Number: Case Number: 5608
• Citation: 1916 OK 165,155 P. 606,55 Okla. 289
• Parties: KALI INLA COAL CO. v. GHINELLI et al.
• Court: Oklahoma Supreme Court

1916 OK 165

155 P. 606

55 Okla. 289

KALI INLA COAL CO. v. GHINELLI et al.

Case Number: 5608

Supreme Court of Oklahoma

Decided: February 8, 1916

Syllabus

¶0 1. DEATH--Aliens. Where an Italian citizen, who has known heirs, is killed in the United States, said heirs are not prohibited, by the treaty between the United States and Italy, from bringing an action for damages for the killing.

2. DEATH--Action--Parties--"Next of Kin." Where a deceased child leaves no issue, nor husband, nor wife, but leaves both father and mother, they are the only heirs and "next of kin" of the deceased, and the brothers and sisters of said deceased should not be joined with his father and mother in an action for damages for the killing of the deceased child.

3. TRIAL--Opening Statement--Time for Making. The law requires the party not having the burden of proof to make his statement immediately following the statement of the party having the burden of proof, unless the court, for some special reason, otherwise directs.

4. APPEAL AND ERROR-- Assignment of Error--Pleading--Evidence. The assignment that the court erred in admitting any evidence presents the question in this case as to whether the petition states a cause of action.

5' 8. MASTER AND SERVANT- -Injury to Servant--Mine Explosion--Generation of Cause--Evidence. Where an employee is killed by an explosion in a mine, evidence of gas being found therein, weeks and months before the accident, is admissible for the purpose of showing the mine generated gas.

6. APPEAL AND ERROR--Harmless Error-- Demurrer to Evidence. Where defendant demurs to the evidence in chief, and afterwards introduces evidence, and the omission or defect by reason thereof is supplied, the overruling of the demurrer becomes harmless.

7. MASTER AND SERVANT--Substitute for Servant--Temporary Service--Duty of Master. Where a master, from custom, permits his servant to substitute another person temporarily, in his stead, such substituted person is the employee of the master, and the master owes to such substituted person, during such temporary service, the same degree of protection that he owes to his regularly employed servant.

9. DEATH -- Action for Damages -- Evidence -- Pecuniary Circumstances of Plaintiff. Where parents sue to recover damages for the killing of a child, evidence, as to the amount of property owned by the parents, is admissible.

10. TRIAL -- Submission of Issues -- Evidence -- Credibility of Witnesses--Question for Jury. Where there is any evidence reasonably tending to support the issues, it should be submitted to the jury, and evidence on a given point does not depend upon the larger number of witnesses, because some may swear the truth, while others may not, and the jurors are the sole judges of the credibility of witnesses.

11. TRIAL-- Refusal of Instructions Covered. Where the court, in its general instructions, substantially gives the special instructions, requested by the parties, that ought to have been given, it is not error for the court to refuse to give them in the manner requested.

James B. McDonough, for plaintiff in error.

Arnote & Anderson, for defendants in error.

WATTS, C.

¶1 This was an action for the negligent killing of Andrew Ghinelli, March 25, 1910, brought by his father and mother, defendants in error, plaintiffs below, hereafter called "plaintiffs," in the district court of Latimer county, against plaintiff in error, defendant below, hereinafter called "defendant." The Ghinellis were native-born inhabitants of Italy, the father and son residing in Oklahoma, and the mother in Italy at the time their son, Andrew Ghinelli, was killed, and, the father and mother having recovered judgment against defendant for the sum of $ 750, defendant appeals to this court. The defendant contends the trial court committed the following error:

First, that the father and mother cannot maintain this action.

Second, the plaintiffs, under the law of Oklahoma, cannot maintain this action.

Third, the trial court erred in holding that, if any opening statement was made by the plaintiff in error, it must be made following the opening statement by the defendants in error.

Fourth, the court erred in admitting any testimony in the case.

Fifth, erred in admitting evidence of gas weeks and months before the accident.

Sixth, it was error to admit the evidence of Gondolphi and Palmeri that there were only two gas men.

Seventh, it was error to permit Gondolphi to testify that he employed Ghinelli.

Eighth, error in admitting evidence of Gondolphi as to gas in the mine.

Ninth, error in admitting evidence as to the property owned by defendants in error.

Tenth, the demurrer to the evidence should have been sustained.

Eleventh, error in instructions.

¶2 1. The defendant contends that the treaty of the United States with Italy (May 8, 1878, 20 Stat. 725) abrogates and sets aside the statute of Oklahoma providing for the bringing of such actions, and to maintain its contention cites the following articles of said treaty:

"Art. 16. In case of the death of a citizen of the United States in Italy, or of an Italian citizen in the United States, who has no known heir, or testamentary executor designated by him, the competent local authorities shall give notice of the fact to the consuls or consular agents of the nation to which the deceased belongs, to the end that information may be at once transmitted to the parties interested."

"Art. 17. The respective Consuls General, Consuls, Vice Consuls and Consular agents, as likewise the Consulor Chancellors, secretaries, clerks or attaches, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to officers of the same grade, of the most favored nation."

¶3 The defendant argues that the trial court erred in sustaining the demurrer to its answer, which alleged that the plaintiffs could not maintain their suit by reason of said treaty. We cannot agree with this contention, because said treaty only applies to an Italian citizen who has no known heirs, or testamentary executor designated by him. If the plaintiffs are the heirs of Andrew Ghinelli, then they had a right to bring this action. Section 8985, Comp. Laws 1909, provides that when the deceased leaves no issue, nor husband, nor wife, but leaves both father and mother, the estate must go to the father and mother in equal shares. Therefore the plaintiffs are the only heirs of Andrew Ghinelli, and were not prohibited from bringing this action by reason of the aforesaid treaty. Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L.R.A. 934, 70 Am. St. Rep. 309; Atchison, T. & S. F. Ry. Co. v. Fajardo, 74 Kan. 314, 86 P. 301, 6 L.R.A. (N. S.) 681; Vetaloro v. Perkins (C. C.) 101 F. 393; 2 Cyc. 107; 13 Cyc. 333.

2. Defendant contends that the plaintiffs under the laws of Oklahoma cannot maintain this action. With this contention we cannot agree, for the reason section 5946, Comp. Laws 1909, provides that where there is no widow, and where there is no personal representative, the action may be maintained by the next of kin. Shawnee Gas & Electric Co. et al. v. Motesenbocker, 41 Okla. 454, 138 P. 790, holds that the "next of kin" are persons who, under the laws of this state, would inherit the personal property of the deceased, and the statute, supra, shows that the plaintiffs were the only persons that could maintain this action, and it was not necessary or proper that the brothers and sisters of Andrew Ghinelli be joined with the plaintiffs in order to maintain this action.

3. Defendant contends that the court erred in requiring it, if it made any opening statement, to make it following the opening statement of the plaintiffs. Section 5794, Comp. Laws 1909, reads as follows:

"When the jury has been sworn, the trial shall proceed in the following order, unless the court for special reasons otherwise directs: First, the party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. Second. The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it."

¶4 We think the above statute requires the party not having the burden of proof to make his statement immediately following the statement of the party having the burden of proof, unless the court, for some special reason, should otherwise direct.

4. The fourth assignment, that the court erred in admitting any evidence, presents the question in this case as to whether the petition states a cause of action. Sulzberger & Sons Co. v. Castleberry, 40 Okla. 613, 139 P. 837. The contention is not well taken. The sufficiency of the petition will be discussed in the tenth assignment.

5. The defendant urges that the court erred in admitting evidence of gas weeks and months before the accident. Section 4359, Comp. Laws 1909, provides that the break-throughs in mines where gas is generated in dangerous quantities shall not be more than 30 feet apart. Section 4374, Comp. Laws 1909, provides that, in all mines where explosive gas is generated, every working place, without exception, and all roadways shall be carefully examined before each shift, and in no case shall said examination be begun more than three hours prior to the appointed time for each shift to begin work. One of the grounds of negligence alleged in plaintiffs' petition is that the defendant had driven the eighth east entry of said mine more than 30 feet beyond the break-through. It was also alleged in their petition, as one of the acts of negligence, that the defendant had failed to inspect its mine for explosive gases, in accordance with the law. We think that the evidence was admissible, for the purpose of showing that the mine generated gas, and for the purpose of showing that the defendant had been negligent in driving its entry more than 30 feet beyond the break-through, and that explosive gas was generated in its mines.

6. The defendant thinks it was error to...