Mccoubrey v. Pure Oil Co.

• Decision Date: 16 February 1937
• Docket Number: Case Number: 27301
• Citation: 1937 OK 109,66 P.2d 57,179 Okla. 344
• Parties: McCOUBREY, Adm'r. v. PURE OIL CO.
• Court: Oklahoma Supreme Court

1937 OK 109

66 P.2d 57

179 Okla. 344

McCOUBREY, Adm'r. v. PURE OIL CO.

Case Number: 27301

Supreme Court of Oklahoma

Decided: February 16, 1937

Syllabus

¶0 1. DEATH - Claim for Exemplary Damages for Death of Nonresident Occurring in His State Against Nonresident Corporation Held not Enforceable in Oklahoma Courts.

Where a nonresident of this state is killed in the state of his residence by a corporation, not a resident of that state nor of this state, but doing business and owning property in both states, a claim for exemplary damages based upon the law of the state of decedent's residence and wherein he was killed cannot be enforced in the courts of this state, where it is apparent that the defendant is as readily amenable to service of process by the courts of the state where the death occurred.

2. EXECUTORS AND ADMINISTRATORS - Grant of Administration Upon Estate of Nonresident Vacated Where Based Solely Upon Alleged Cause of Action for Exemplary Damages Arising in Other State.

A grant of administration in this state upon the estate of a nonresident based solely upon the existence of an alleged cause of action under the statutes of the state of decedent's residence will, upon proper attack, be vacated, where it appears that the alleged cause of action is not enforceable or should not be enforced in the courts of this state.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by E.R. McCoubrey, administrator of estate of Roy G. Sebourn, against the Pure Oil Company. From an order sustaining demurrer to plaintiff's petition and the further order directing the county court to vacate letters of administration, the plaintiff appeals. Affirmed.

McCoy, Craig & Pearson, for plaintiff in error.

Humphrey & Spence, for defendant in error.

WELCH, J.

¶1 The parties appear here in the same order in which they appeared in the trial court and will be referred to as plaintiff and defendant.

¶2 In July, 1934, Roy Sebourn, a resident of Texas, was killed while in the employ of the defendant at a gasoline plant owned and operated by the defendant in the state of Texas. He left surviving him a widow and minor son as his sole heirs at law, who are also residents of the state of Texas.

¶3 In January, 1936, the widow filed her petition in the county court of Osage county, Okla., seeking the appointment of E.R. McCoubrey as administrator of the estate of her deceased husband, alleging therein that the deceased was a resident of the state of Texas at the time of his death, and that he left estate in Osage county, Okla., the general character and probable value being "A cause of action for wrongful death of said decedent against the Pure Oil Company, a corporation, doing business in the state of Oklahoma and having property in Osage county, Okla., value unknown." It was not alleged that the deceased owned any other property of whatsoever character at any place. Pursuant to such application the county court of Osage county appointed McCoubrey as administrator. The defendant is a corporation organized under the laws of the state of Ohio, and the plaintiff administrator is a citizen of the state of Ohio.

¶4 Thereafter plaintiff instituted a suit in the district court of Osage county, Okla., against the defendant in which he alleged his appointment and qualification as such administrator; that the defendant is an Ohio corporation engaged in operating an oil refinery and gasoline plant in the county of Van Zandt, in the state of Texas, and having property in Osage county, Okla.; he alleged the decedent's death while a resident of the state of Texas, and that the widow and minor son were the sole heirs at law: that the decedent's death resulted from injuries which were the direct and proximate result of the willful act or omission or gross negligence of defendant. He alleged that by reason of such facts there accrued to him under the laws of the state of Texas a cause of action against the defendant for exemplary damages. It is alleged further in the petition that the decedent's employment was within the terms and provisions of the Texas Workmen's Compensation Law, and that plaintiff was entitled to judgment against the defendant for exemplary damages (although not being entitled to recover actual damages) upon proof that actual damages had been sustained. He specifically pleaded the Texas statutes as a basis for his cause of action and his authority to maintain the same for exemplary damages.

¶5 He alleged that he was entitled to $25,000 exemplary damages for the decedent's widow, and $25,000 exemplary damages for decedent's minor son.

¶6 After the filing of such petition in the district court, and after service of summons upon defendant in Osage county, in such action, said defendant filed its motion in the county court to set aside and vacate the letters of administration so issued. Upon hearing had, the motion was overruled and an appeal taken to the district court of Osage county.

¶7 The defendant demurred to plaintiff's petition filed in the district court action upon the following grounds:

"1. That the court had no jurisdiction of the subject of the action.

"2. That plaintiff has no legal capacity to sue.

"3. That the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant."

¶8 By stipulation of the parties the defendant's demurrer to the petition and the cause on appeal from the county court were consolidated by order of the trial court, both for the purpose of hearing and determination in that court, and for the purpose of appeal to this court. Upon hearing had, the district court sustained the demurrer and also reversed the county court and ordered the letters of administration vacated, from which action the plaintiff presents this appeal.

¶9 The question of the right of the county court to appoint an administrator and the questions presented by the court's action in sustaining the demurrer to the petition filed in the district court both ultimately involve the right of plaintiff to maintain the action for damages in Osage county against the defendant, and we do not endeavor to keep the several questions presented entirely separate and apart.

¶10 A helpful statement of many of the principles of law involved is found in 23 C. J. 1009, para. 32. Without intention of approving or disapproving all of the principles therein contained, but for the sake of continuity, we quote the section in full as follows:

"In view of the fact that a cause of action for the wrongful death of a decedent is sometimes, although usually not, an asset of his estate, and of the very general requirement that such an action shall be brought by the executor or administrator of the decedent, the existence of such a cause of action is usually regarded as a sufficient basis for a grant of administration in the jurisdiction where such cause of action arose, or where it may be enforced, even though the decedent was a nonresident and left no other assets in the jurisdiction. This view has been maintained notwithstanding a contention that the cause of action did not accrue in the decedent's lifetime, that, under the statute, no right of action arose in behalf of anyone until after an administrator had been appointed, or that the administration should properly be in the state of the decedent's residence. There is, however, authority for the view that administration on the estate of a nonresident cannot be granted in the jurisdiction where the occurrence causing his death took place, merely for the purpose of qualifying a representative to bring an action for such death, where the decedent left no property in the jurisdiction, and it is clear that such a claim will not warrant administration in one state where the decedent was a resident of another state in which the death and the negligence causing the same occurred and under the statutes of which the right of action arose."

¶11 We observe from the text and the supporting authorities there cited that the weight of modern authorities appears to support the doctrine that a statutory cause of action for wrongful death will generally support the appointment of an administrator of the decedent's estate, though there be no assets subject to the payment of debts and though there is no other property. We observe further therefrom that the grant of administration is quite generally upheld in the jurisdiction where the cause of action arose (see footnotes 38, in the text). We observe also that many courts have held in proper cases that the grant of administration will be upheld in the jurisdiction where the cause of action may be enforced. We note the above conclusions of the various courts as enlightening on the general subject before us, but it is our view that the specific questions generally considered therein are not entirely in point with what we consider the controlling and determining question here.

¶12 Few, if any, of the cases may be said to support the grant of administration in the jurisdiction where the decedent did not reside, owned no other property, and where the cause of action did not arise and where a consideration of comity did not impel the courts of that jurisdiction to enforce the claim or cause.

¶13 We consider the last portion of the quoted text as a substantially correct statement of the controlling principle of law here, wherein it is said as follows:

"* * * and it is clear that such a claim will not warrant administration in one state where the decedent was a resident of another state in which the death and the negligence causing the same occurred and under the statutes of which the right of action arose."

¶14 We would add thereto, however, the following: And where the courts of the jurisdiction in which administration is sought are not impelled by the comity rule to enforce the cause.

¶15 If the alleged cause of action declared upon by plaintiff in this case is not such as to command the exercise of...