Mostenbocker v. Shawnee Gas & Elec. Co.
| Decision Date | 13 July 1915 |
| Docket Number | 7107. |
| Citation | 152 P. 82,49 Okla. 304,1915 OK 558 |
| Parties | MOSTENBOCKER ET AL. v. SHAWNEE GAS & ELECTRIC CO. ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 19, 1915.
Syllabus by the Court.
Where the mother of deceased originally brought suit to recover damages for the alleged negligent death of her minor son caused by the alleged negligence of the defendants, and an amendment was permitted, adding the brothers and sisters as plaintiffs, but the allegations of the original and amended petitions in all other respects were substantially the same there was no change of the cause of action from one law to another.
The filing of an amendment, adding the names of the brothers and sisters as parties plaintiff in an action, though permitted more than two years after the filing of the original petition, was not the statement of a new cause of action, but the amendment related back to the commencement of the action so as to defeat a plea of the statute of limitations.
Additional Syllabus by Editorial Staff.
Where a person for whose death action is brought left neither widow nor children nor father surviving him, but left a mother and brothers and sisters, the mother, brothers, and sisters are "next of kin" within the meaning of the statute making the "next of kin" necessary parties to the action.
Error from District Court, Pottawatomie County; Chas. B. Wilson Jr., Judge.
Action by Sarah E. Mostenbocker and others against the Shawnee Gas & Electric Company and another. Judgment for defendants, and plaintiffs bring error. Reversed and remanded.
W. T. Williams and H. H. Smith, both of Shawnee, for plaintiffs in error.
Keaton, Wells & Johnston, of Oklahoma City, and Edward Howell, of Shawnee, for defendants in error.
Sarah E. Mostenbocker filed her original petition in the district court of Pottawatomie county, on June 22, 1908, in which she sought to recover damages against defendants in error for the wrongful death of her son, Willie Mostenbocker, which occurred in the city of Shawnee, on June 10, 1908. The defendants in error demurred to the petition, among other grounds for the reason that plaintiff had no legal capacity to sue, and that there was a defect of parties plaintiff. Upon a trial, and verdict for plaintiff, defendants appealed, and the case was reversed in an opinion reported in 41 Okl. 454, 138 P. 790, upon the ground that said plaintiff was not entitled to maintain suit in her own right, but that the brothers and sisters of deceased were included within the meaning of the words, "next of kin," and were proper parties to the suit. Upon a remand of the case amended petition was filed, in which the brothers and sisters of deceased were joined as plaintiffs, to which amended petition each of the defendants filed their separate motion to strike, for the reasons stated in said motion. Plaintiffs filed objections to the consideration of certain grounds of said motion to strike, which objections were sustained, and the remaining grounds thereof overruled. Thereupon defendants each filed a separate demurrer upon the following grounds: (1) Defect of parties plaintiff; (2) that plaintiffs were without legal capacity to sue or maintain the action; (3) misjoinder of causes of action; (4) the petition did not state facts sufficient to constitute a cause of action against the defendants; and 5) that the pretended causes of action alleged in said petition, and each of them, are barred by the statute of limitations; which demurrers were by the court sustained. Plaintiffs reserved exceptions to the ruling of the court, declined to plead further, and thereupon the petition was dismissed, and the plaintiffs bring error.
Plaintiffs in error urge that the amended petition obviated the objections to the original petition and stated no new cause of action; while defendants in error urge that the action of the court in sustaining the demurrers should be upheld: (1) Because the trial court never ordered or permitted additional parties to be made plaintiffs; (2) because no additional parties have appeared or pleaded; (3) because the amended petition sought to change the cause of action from one under certain general statutes declaratory of the common law to one under the death by wrongful act statute; (4) because the plaintiff is attempting to bring into the case entirely new parties, which would largely increase the measure of damages; (5) because the amended petition attempts to entirely change the cause of action, the parties whose rights or claims have been violated, and the measure of damages, long after the limitation provided in the act creating the right of action has run.
With reference to the first two grounds, urged by defendants in error, it is sufficient to say that the amended petition purports to have been filed on behalf of the mother and brothers and sisters, and is a joint petition, and was evidently so considered by the court. These defendants in error filed motion in the trial court to have said petition stricken, which was overruled, and thereupon filed demurrer thereto, which was sustained by the court, and they are now in this court, urging said demurrer as to all of said plaintiffs, and each of them; and all of said plaintiffs join in the petition in error herein; and, in view of these facts, we think the petition is sufficient in these two respects.
With reference to the third proposition of defendants in error, that the petition sought to change the cause of action from one under general statutes declaratory of the common law to one under the death by wrongful act statute, it appears that the action was originally brought by plaintiff Sarah E. Mostenbocker, in her own right, upon the theory that she was entitled to all of the damages which might be recovered in the action, and aside from the fact that the action was brought in her individual name, there is no substantial difference between the allegations of the petition as to the alleged acts of negligence upon which the case was tried in the former action and the amended petition in the present appeal. In the former, as in the latter, it was sufficiently alleged that the deceased came to his death through injuries suffered as the result of the negligent acts of the defendants, which are set forth in substantially the same terms in both pleadings. It is true that in the former appeal counsel urged plaintiff's right to maintain the suit for her exclusive benefit under sections 2881, 2882, Comp. Laws 1909, which contention was overruled. The facts alleged, however, are the same so far as the cause of the injuries resulting in the death of deceased are concerned, out of which the cause of action accrued; and it is what the pleadings state by which we must be governed, instead of the argument and theories of counsel, put forward in a futile effort to sustain plaintiff's exclusive right to a recovery contrary to the provisions of the statute. The right of action was given by the statute, based upon the acts of negligence complained of, to the parties therein named, and we therefore hold that there was no change of the cause of action from one law to another. M., K. & T. Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134; Neubeck v. Lynch, 37 App. D. C. 576, 37 L. R. A. (N. S.) 813.
The other propositions urged present the question as to whether or not under an amendment bringing in new parties a new cause of action is stated and the statute of limitations has run as to said new parties. Section 4692, Rev. Laws 1910, provides:
"Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant; the reason being stated in the petition."
Section 4790, Rev. Laws 1910, provides:
"The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, which such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment."
The amendment was permitted by the court, and was in fact made, because of the objections of defendants in error to the sufficiency of the original petition, and the right of the court to permit the amendment to be made is not presented for our consideration. There is presented, however, the plea of the statute of limitations to the petition as so amended. The demurrer treats the right of the different plaintiffs to recover as being several, and urges the bar of the statute of limitations to each of them individually.
There is only one action authorized by the statute, and the same death cannot be sued for in separate actions by the various individuals sustaining damage thereby; and, as held in the former appeal, where a person for whose death suit is brought left neither widow nor children nor father surviving him, but left a mother and brothers and sisters, the mother, brothers and sisters all come within the meaning of the term, "next of kin," and are necessary parties to the maintenance of the suit (Shawnee Gas & Electric Co. v. Motesenbocker, supra), and it was further held that their absence amounted to a defect of parties, objection to which defect, having been taken in due time, was sustained and the case reversed for that reason. The mother,...
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