Oklahoma Gas & Elec. Co. v. Lukert

• Decision Date: 05 January 1906
• Citation: 84 P. 1076,16 Okla. 397,1906 OK 4
• Parties: OKLAHOMA GAS & ELECTRIC CO. v. LUKERT.
• Court: Oklahoma Supreme Court

84 P. 1076

16 Okla. 397, 1906 OK 4

OKLAHOMA GAS & ELECTRIC CO. v. LUKERT.

Supreme Court of Oklahoma

January 5, 1906

Syllabus by the Court.

Where the relief prayed for in plaintiff's petition is for a money judgment, and the plaintiff does not state the amount for which she asks judgment, held, that such failure to state the amount for which the plaintiff asks judgment does not of itself and alone render the petition so insufficient as to render the same subject to demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action.

[Ed Note.-For cases in point, see vol. 39, Cent. Dig. Pleading §§ 143-440.]

In all cases in this territory for the death of a husband, where such death is occasioned by the wrongful act or omission of any person or corporation, and where it is shown that the residence of the husband at the time of the death was in this territory and that no personal representative or administrator has been appointed, the action is properly brought by the widow in her own name.

[Ed Note.-For cases in point, see vol. 15, Cent. Dig. Death, §§ 56-58.]

Where there is conflicting evidence on the question of contributory negligence, it is always a question for the jury. It is only when the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.

[Ed Note.-For cases in point, see vol. 37, Cent. Dig. Negligence §§ 282-286, 303-306.]

Error from District Court of Oklahoma County; before Justice B. F. Burwell.

Action by Myrtle Lukert against the Oklahoma Gas & Electric Company. Judgment for plaintiff, and defendants bring error. Affirmed.

This was an action commenced in the district court of Oklahoma county by the plaintiff, Myrtle Lukert, against the Oklahoma Gas & Electric Company, a corporation. In her petition the plaintiff alleges that on the 16th day of November, 1902, one George Lukert, the husband of the plaintiff, was killed by the negligence of the defendant, the Oklahoma Gas & Electric Company; that no administrator, or executor, or other personal representative, had ever been appointed to administer upon the estate of the said George Lukert; that about such time, and for a long time prior thereto, the above-named defendant, the Oklahoma Gas & Electric Company, was a duly organized and existing corporation under and by virtue of the laws of the territory of Oklahoma, and was at that time, and is now, the owner of and operating an electric light plant in said city of Oklahoma City, Oklahoma Territory, for the purpose of furnishing light, heat, and power to said city and the inhabitants thereof, and was so operating said electric light plant for such purposes on the 15th and 16th of November, 1902. The plaintiff further says that for the purpose of distributing the electric currents for the purposes aforesaid the said defendant had wires suspended upon poles extending through and along the streets and alleys of said city, and that on said dates the said defendant had wires suspended on poles extending along Chickasaw street, in front of the home of this plaintiff and her said husband. Plaintiff further says that on the same poles belonging to the said defendant on which its wires were strung as aforesaid, and below the wires of said defendant, were the wires of the Pioneer Telephone Company, a corporation, owning and operating a telephone plant in said city of Oklahoma City, O. T., but plaintiff alleges that said wires of the telephone company were not charged with currents of electricity only when they came in contact with the wires of the defendant. Plaintiff further says that on the evening of the said 15th day of November, 1902, the said defendant negligently and carelessly permitted its said wires, suspended on said poles on said Chickasaw street, and in close proximity to the home of this plaintiff and her said husband, to become out of repair, and at said time there was being transmitted over said wires of said defendant strong, deadly, and dangerous currents of electricity, and that by reason thereof said wires became broken between the poles on which the same was suspended, and the ends thereof fell from the position where suspended, and came in contact with the wires of the said Pioneer Telephone Company, which were suspended on said poles below the wires of the said defendant as aforesaid, and by reason thereof the wires of the Pioneer Telephone Company became charged with a heavy, deadly, and dangerous current of electricity from the said wires of the defendant, and by reason thereof the said wires of said telephone company were burned and became broken, and the broken ends, together with the broken ends of the wires of said defendant, fell to the ground and remained in contact with broken wires of the said telephone company, and that said wires, so charged with electricity by said wires of the defendant, remained in said condition from said time until about 7:30 o'clock on the morning of the 16th of November, 1902; that the said defendant, or its agents had notice on the said evening of the 15th of November, 1902, of the broken and dangerous condition of their said wires along and near the home of the said plaintiff and her said husband, but that, notwithstanding said notice, the said defendant negligently and carelessly permitted said wires to remain out of repair and in said condition, and lying on the ground near said plaintiff's house during said night, until 7:30 o'clock next morning as aforesaid, and during all of which time said wires were charged with strong, deadly, and dangerous currents of electricity, and were dangerous for persons residing near or traveling in that vicinity on account of the liability of their coming in contact therewith. Plaintiff further says that on the morning of the said 16th day of November, 1902, and at about the hour of 6 o'clock a. m. on said day, while said broken wires of said defendant and said telephone company, so charged with a strong, deadly, and dangerous current of electricity, were still lying upon the ground near the home of this plaintiff and her said husband, the said George Lukert, husband of this plaintiff, was called to go out of the front door of their home, and onto said Chickasaw street in said city, and while thus going in said street, and while in the exercise of due care and caution, and without any fault on his part, came in contact with one of said broken wires aforesaid, so charged with strong, dangerous, and deadly currents of electricity aforesaid, and negligently left in said position by said defendant as aforesaid, and which current of electricity entered the person of the said George Lukert, whereby and by means of which he was then and there instantly killed. Plaintiff further says that the death of the said George Lukert was caused by the negligence and gross carelessness of the agents, servants, and employés of the said defendant in leaving said broken wires, charged with said dangerous and deadly currents of electricity, in an exposed condition, where persons lawfully traveling upon said street might come in contact therewith; that by reason of the death of the said George Lukert, caused as aforesaid, this plaintiff has been damaged by said defendant in the sum of $10,000 and costs of this suit.

To this petition the defendant filed an answer of general denial, and plaintiff filed a reply. Afterwards by leave of court the defendant filed an amended answer, wherein, first, "said defendant admits that one George Lukert was, on the 16th day of November, 1902, killed by coming in contact with the wires of the Pioneer Telephone Company, a corporation organized under the laws of the territory of Oklahoma, and owning and operating a system of telephone wires in the said city of Oklahoma City. Defendant further admits that it, at the dates mentioned in the petition, was the owner of a line of poles and wires extending along Chickasaw street in the said city of Oklahoma City, and in front of the residence of said George Lukert, and that the telephone wires of the said Pioneer Telephone Company were strung upon the same line of poles with the wires of defendant. Second. Except as hereinbefore admitted, the defendant denies each and every material allegation contained in plaintiff's amended petition. Third. Defendant for a third defense states that the said George Lukert met his death by reason of his own negligence, and not by the negligence of this defendant. Fourth. For a further defense defendant states that the death of the said George Lukert was caused by the negligence of the said George Lukert himself, in connection with the negligence of the said Pioneer Telephone Company, a corporation owning the line of telephone wires with which the said George Lukert came in contact, and from which he received the deadly charge of electricity. Wherefore defendant prays that the plaintiff take nothing by her said action, and that it recover its costs herein." To which the plaintiff filed a reply as follows (after entitling the case and court): "Now comes the said plaintiff, and for a reply to the answer of the defendant, denies each and every allegation in the third and fourth paragraphs of said answer." Upon the pleadings thus formed and the issues thus raised the case came on for trial on the 16th day of May, 1904, being one of the regular days of the regular term of said court. A jury was impaneled the evidence heard, and the jury, after being instructed by the court as to the law, returned a verdict in favor of the plaintiff, and assessed her damages at $6,000, and also returned answers to 29 special interrogatories propounded to them by the court. Thereafter, and on the 19th day of May, 1904, d...