National Valve & Mfg. Co. v. Wright

• Decision Date: 26 December 1951
• Docket Number: No. 34109,34109
• Citation: 240 P.2d 766,205 Okla. 571
• Parties: , 29 A.L.R.2d 1448 NATIONAL VALVE & MFG. CO. v. WRIGHT et al.
• Court: Oklahoma Supreme Court

Page 766

240 P.2d 766

205 Okla. 571, 29 A.L.R.2d 1448

NATIONAL VALVE & MFG. CO. v. WRIGHT et al.

No. 34109.

Supreme Court of Oklahoma.

Dec. 26, 1951.

Syllabus by the Court

1. A duly appointed administrator, bringing an action for wrongful death pursuant to the provisions of 12 O.S. 1941 § 1053, is thereby vested with full and complete control over the action, and a judgment rendered upon a purported settlement of the action by the widow of the deceased was properly set aside upon motion of the administrator, when made without his knowledge and consent.

2. It is not within the power of an attorney at law to compromise and settle his client's claim for less than the full amount without authorization of his client to do so.

3. Record examined and held that the judgment in the instant case was properly set aside under the third subdivision of 12 O.S.1941 § 1031, for irregularity in obtaining such judgment.

Pierce, Rucker, Mock, Tabor & Duncan, Tulsa, for plaintiff in error.

Leo J. Williams, Roy F. Ford and Charles D. Crandall, all of Oklahoma City, for defendant in error, Hasbrouck S. Wright, Adm. of Estate of L. L. (Roy) Conner, Dec'd.

BINGAMAN, Justice.

This is an appeal by National Valve and Manufacturing Company, a corporation, from an order of the District Court of Tulsa County, setting aside a compromise and settlement of a death case in which Hasbrouck S. Wright, administrator of the estate of L. L. (Roy) Conner, deceased, was plaintiff, and National Valve and Manufacturing Company, Public Service Company of Oklahoma, and W. R. Grimshaw Company, a copartnership, were defendants. The judgment was entered by the District Court upon a compromise or settlement agreement made by the attorneys representing the administrator, and the widow of the deceased, who is one of the beneficiaries, with the defendants, without the knowledge or consent of the administrator. This settlement was approved by the trial court. The administrator and the widow refused to accept the money when it was tendered, and thereafter other attorneys were employed by the administrator and a motion to vacate the judgment so rendered, filed by them, was sustained by the trial court. The widow and two adult children were all the parties entitled to participate in the recovery, if any, and the widow testified that she had consulted them and they had agreed that she could settle the matter if she so desired.

Plaintiff in error contends that the widow was the real party in interest and therefore could compromise and settle the claim regardless of the wishes of the administrator, the administrator being in reality only her agent for the purpose of bringing the action. We are unable to agree with this contention. Plaintiff in error cites in support of this contention Sparks v. Gallagher, 114 Okl. 103, 243 P. 228; Kannel v. Kennedy, 3 Cir., 94 F.2d 487, and similar cases, and asserts that any contract made by the widow would be res adjudicata as to the administrator under the authorities cited. We do not consider these authorities applicable, as in our judgment they do not touch the question presented.

By 12 O.S.1941 § 1053, an action for wrongful death is required to be brought by the personal representative, and by Sec. 1054, the widow is authorized to bring the action if no personal representative has been appointed. In the instant case the administrator had been appointed, and while he was a resident of the State of Pennsylvania, and the reason for his appointment was to prevent the removal of the case to the Federal Court, he was nevertheless vested with all the powers of an administrator, and, under the statutes governing the conduct of such cases, when the action was brought by him he was vested with full authority to prosecute the same as in his judgment seemed best, and no settlement could be effected therein by the widow without his knowledge and consent.

In 16 Am.Jur. p. 108, Sec. 160, it is stated that the settlement of a cause for wrongful death by one entitled to receive the damages therefor is ineffectual if made after the personal representative has begun an action to recover the damages.

In Yelton v. Evansville & I. R. Co., 134 Ind. 414, 33 N.E. 629, 630, 21 L.R.A. 158, the Supreme Court of Indiana considered the identical question here presented. After pointing out that the damages recovered were for the exclusive benefit of the widow, the sole beneficiary in that case, but that the action could be prosecuted only by the administrator, the court said: 'This being true, if the widow can compromise the cause of action and release the damages so as to terminate the suit, it places the administrator in the anomalous position of having the sole right to prosecute the action, and yet gives to the widow, or widow and children, if there be children, the right to compromise the action outside of court, and cancel the claim for damages upon which the action is based. While it would give to the administrator the sole right to prosecute the action, yet he would not have the sole right to control the prosecution of the action once commenced. It would seem that the law which authorizes a person to prosecute an action would give to him by necessary implication the right to control such prosecution, and not permit one, not a party to the action, and having no right to be a party to the action, the right to compromise the action. While actions under this section of the statute are prosecuted for the benefit of, and the damages inure to the exclusive benefit, of, the widow and children of the deceased, yet it contemplates the collection of the damages by the administrator, and turning the same over to the widow and children on final settlement. The fund is evidently chargeable with the necessary expense incurred by the administrator in payment for his services, and attorneys' fees, and expense of administration.'

A number of authorities are cited in the opinion in support of the above statement. In Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, we cited the Yelton case in support of the...