Mid-Co Petroleum Co. v. Allen
| Decision Date | 10 March 1925 |
| Docket Number | Case Number: 12141 |
| Citation | 236 P. 426,110 Okla. 101,1925 OK 196 |
| Parties | MID-CO PETROLEUM CO. v. ALLEN et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Death--Action for Wrongful Death of Child of Widow--Parties Plaintiff--"Next of Kin".
Where a deceased child leaves no issue, nor husband, nor wife, but leaves a mother, she is the only heir and "next of kin" of the deceased, and the brothers and sisters of said deceased should not be joined with his mother in an action for damages for the killing of a deceased child.
2. Same.
By the term "next of kin" is meant all who would have been entitled to share in the distribution of the personal property of the deceased.
3. Same--Evidence--Proof of Mother's Expectancy by Mortality Tables.
In the trial of an action wherein a surviving mother is seeking to recover damages for the wrongful death of her son, it is error to admit in evidence mortality tables to prove the expectancy of the surviving mother.
Commissioners' Opinion, Division No. 1.
Error from District Court, Noble County; Arthur R. Swank, Judge.
Action by Ella Allen, G. A. Allen, Aletha Brady, W. M. Allen, Rosa Fenter, Fanny Allen, Minnie Denis, and Bessie Allen, by her next friend. Ella Allen, against Mid-Co Petroleum Company, a corporation. There was judgment for the plaintiffs, and defendant appeals. Reversed.
This is an action by the plaintiffs against the defendant for damages for the alleged wrongful death of Henry Allen, a son of Ella Allen, and a brother to the other plaintiffs. It is alleged in the petition that Henry Allen was in the employ of the defendant, and that on July 12, 1918, the said Henry Allen fell from a scaffold upon which he was working on an oil tank and struck his head on some hard instrument that broke his skull and caused his death; it is alleged that the defendant was negligent in not providing a safe place for said Henry Allen to work, and that by reason of the negligence of defendant, he fell from said scaffold and was killed. They set up the relationship of the plaintiffs to said Henry Allen and pray for judgment in the sum of $ 20,000. The defendant filed a motion to quash the summons in said cause, which motion was overruled by the court, and defendant then filed answer prefacing said paragraph of its answer with the words: "Without waiving any of its other defenses," etc.
On the trial, it is shown that Ella Allen was the mother of Henry Allen and that the other plaintiffs are brothers and sisters of said Henry Allen; that Henry Allen had no wife, no children, and no father living; that Henry Allen was a rivet heater and was "bucking up" a tank for the tank builder, Fred Joyce, and that "the bar slipped off the scaffold on which Allen was working, and when the bar "slipped off" he went backward and fell about 12 feet; the "dolly bar" held by Allen was about 28 inches long and weighed about 40 pounds. He also held a lever; and that Allen was a competent and experienced man. There are numerous objections to the testimony offered by plaintiff, most of which were overruled and exceptions allowed. There were also exceptions saved to the refusal to give certain instructions and to the giving of certain instructions, which are assigned as error by the plaintiff in error, defendant below. The trial resulted in a verdict for the plaintiffs and defendant filed its motion for a new trial, alleging various and sundry errors on the part of the trial court, which said motion was overruled and exceptions saved by the defendant. The plaintiff in error has filed eight propositions of error on the part of the trial court, and we will take them up in their order.
Twyford & Smith and W. R. Withington, for plaintiff in error.
Wright, Blinn & Gilmer, for defendants in error.
¶1 The first proposition argued by the plaintiff in error is stated thus: "Defendant's motion to quash the summons and service thereof should have been sustained." In our judgment the summons is regular on its face under the rules of this court. The complaint is that the copy of the summons served did not fix the answer date, but the date was left blank. The fourth ground of the motion to quash was that the statute authorizing the service was unconstitutional and void. We think this, was asking for affirmative relief and constituted a general appearance. We think the motion to quash was properly overruled. The proper method for attacking the service was by motion to set aside the service and not by motion to quash the summons of service.
¶2 The second proposition is stated thus: "The trial court erred in allowing and permitting the brothers and sisters to be parties plaintiff and in permitting a recovery for them."
¶3 The petition alleged and the proof showed that decedent left no wife, children, or father, but left a mother and brothers and sisters. All of the brothers and sisters joined with the mother as plaintiffs. Evidence touching the children and their station in life was objected to by the defendant and exceptions saved. The point emphasized by plaintiff in error on this proposition is that it was prejudicial, error to permit any evidence to be introduced on behalf of any plaintiff except Ella Allen, the mother, or to permit a recovery on behalf of the other plaintiffs. The statutes under which this action is brought are sections 824 and 825, Comp. Stat. 1921, as follows:
¶4 Without these statutes, there would be no right of action for death, as there is none at common law. No administrator was appointed and therefore section 825 applies. Since there is no widow or children the action could have been brought by the next of kin only, which in this case is the mother alone, there being no father. Under our law of succession, the personal property must descend as follows: "If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares." Sec. 11301, subd. 2 Comp. St. 1921.
¶5 This court has already decided that the term "next of kin," as used in the above sections of the statutes, is synonymous with legal heir under the laws of descent and distribution. The case of Shawnee Gas & Electric Co. v. Motesenbocker, 41 Okla. 454, 138 P. 790, lays down the following rule in the second and third paragraphs of the syllabus:
¶6 It will be observed that at the time the above action was brought the mother would take one-half and the brothers and sisters one-half. If these statutes had been in force when Mr. Allen died, this action would have been correctly brought. However, they were afterwards repealed, and the present law as contained in section 11301, Comp. Stat. 1921, of the statute of descent and distribution was, and is now, in force and effect. In the case of Kali-Inla Coal Co. v. Ghinelli et al., 55 Okla. 289, 155 P. 606, the court said, quoting from the syllabus:
"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."
¶7 Shawnee Gas & Electric Co. et al. v. Motesenbocker, 41 Okla. 454, 138 P. 790, is to the same effect, and the case of Whitehead Coal Mining Co. v. Pinkston, 71 Okla. 124, 175 P. 364, holds the same.
¶8 There is no question but what the children were improperly joined as parties plaintiff with the mother in this case, but the difficulty we have in correcting that error is that counsel for defendant did not raise the question or present that identical question to the court until after the appeal in this case. If counsel had filed the proper pleading to raise the question of misjoinder, the trial court in all probabilities would have required plaintiffs to have struck out all names of the parties plaintiff except Ella Allen, the mother. There can be no doubt but what including the children as parties plaintiff was prejudicial to the defendant, and the testimony admitted showing the age and condition of the children was improper and prejudicial, especially as to the child, Bessie Allen, who, it appears, had measles when she was about three years old which left her paralyzed, and she is still a paralytic unable to walk or help herself in any way. There is no lack of testimony in the record that shows that the testimony with reference to the children was very prejudicial, but counsel not having raised the objection in any way to their being made parties to the case, we hardly feel justified in reversing the case on that ground.
¶9 Proposition three is stated thus: "The trial court erred in permitting...
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