Oviatt v. Camarra

• Decision Date: 29 May 1957
• Citation: 311 P.2d 746,210 Or. 445
• Parties: Blanche E. OVIATT, Administratrix of the Estate of Elaine Oviatt, Deceased, Appellant, v. August Mario CAMARRA, Jr., Respondent.
• Court: Oregon Supreme Court

Page 746

311 P.2d 746

210 Or. 445

Blanche E. OVIATT, Administratrix of the Estate of Elaine Oviatt, Deceased, Appellant, v. August Mario CAMARRA, Jr., Respondent.

Supreme Court of Oregon, Department 2.

Argued April 18, 1957.

Decided May 29, 1957.

Ben T. Gray, Portland, argued the cause for appellant. On the brief were Granet & Gray, Portland.

James Arthur Powers, Portland, argued the cause of respondent. With him on the brief was Earle P. Skow, Portland.

Before PERRY, C. J., and LUSK, WARNER and KESTER, JJ.

LUSK, Justice.

This is a statutory action or recover damages for the death of a four-year-old child, Elaine Oviatt, alleged to have been caused by the negligent operation of an automobile by the defendant. The plaintiff is Elaine's mother, and she sues as administratrix of her deceased child's estate. Mrs. Oviatt and her husband are the sole heirs at law of the decedent, and recovery is sought for the benefit of the estate. ORS 30.020. A jury returned a verdict for the defendant, and from the consequent judgment the plaintiff has appealed.

Defendant's answer alleges that the child's mother was guilty of contributory negligence 'in allowing said Elaine Oviatt to be on a busy thoroughfare and highway at a time and under conditions which she knew, or, in the exercise of reasonable care, should have known, were extremely hazardous.' The accident occurred at about 7:40 P.M. on November 13, 1953, in Portland as the child was running across a street known as St. Helens Road. The evidence would have supported a finding of negligence on the part of the mother, as alleged. At the conclusion of the testimony the plaintiff moved the court to strike the allegation of contributory negligence from the answer on the ground that the negligence alleged 'will not affect the rights of plaintiff suing under this section.' The court denied the motion and submitted the issue to the jury in an instruction to which the plaintiff excepted on the same ground stated in support of the motion to strike.

The ruling is assigned as error, and presents the principal question on this appeal. That question is whether in an action for death by wrongful act, where the victim is a minor child and leaves both parents surviving as her sole heirs and the action is brought for the benefit of the estate by the personal representative of the decedent, the contributory negligence of one of the parents is a bar, either in whole or in part, to the right to recover.

The statute which creates the right of action is ORS 30.020, and reads as follows:

'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $20,000, which may include a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased.'

As originally enacted, this section created a right of action for the benefit of the decedent's estate only. In 1939 it was amended so as to permit the action to be brought for the benefit of a surviving spouse or dependent. Oregon Laws 1939, ch. 466. The provision of the second sentence authorizing a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased was added in 1953. Oregon Laws 1953, ch. 600.

In Perham v. Portland General Electric Co., 1898, 33 Or. 451, 467, 53 P. 14, 18, 53 P. 24, 40 L.R.A. 799, 72 Am.St.Rep. 730, we held that this statute 'creates a new right of action in favor of the personal representative for the death itself, and not an action founded on survivorship, or on any cause of action in favor of the deceased,' and that the damages recovered 'become assets of the estate, to be administered upon as other personal property of the deceased.' See, also, Hansen v. Hayes, 175 Or. 358, 396, 154 P.2d 202. We further said in the Perham case, 33 Or. at pages 467-468, 53 P. at page 19:

'* * * The heirs, creditors, or distributees have no interest in the recovery on account of any right of action for the pecuniary injury sustained by them, but only by virtue of being creditors, or of kinship; and, if the expense of the administration and debts of the deceased equal or exceed the assets, including the amount of the recovery, the next of kin would receive no benefit whatever from the right of action.'

All this, of course, is entirely applicable today to a case like the case at bar where there is no surviving spouse or dependent and the action is for the benefit of the estate. It should be observed that in Hansen v. Hayes, supra, 175 Or. at page 397, 154 P.2d at page 217, we held that the cause of action under the 1939 amendment is also a new right and is not based upon survivorship.

The question here presented is not one of imputed negligence. In Macdonald v. O'Reilly, 45 Or. 589, 78 P. 753, this court determined that in a death action the negligence of one parent could not be imputed to the other or to the parent's minor child. We have to decide here the question, suggested but not decided in the Macdonald case, whether the negligence of a parent bars recovery under the theory that no one should be allowed to profit by his own wrong. In the Macdonald case the father of a child aged four years and six months sued as administrator of his estate to recover damages for his death resulting from the fall of timbers, alleged to have been negligently piled in the street near the home of the deceased. The defendant contended that the court erroneously instructed the jury that the negligence of the mother, if any, in permitting the child to play in the street and in not taking care of him, could be no defense to the action. At the time that the case arose the statute of descent and distribution made the father sole heir at law of an intestate who died without lineal descendants or spouse. B. & C. §§ 5577, subd. 2, and 5578, subd. 3. (Since 1913 the father and mother in those circumstances have inherited jointly. Oregon Laws 1913, ch. 39 subd. 2; ORS 111.020(2), 111.030(3).) The court held that there was no evidence of negligence on the part of the father, and, as stated, that the negligence of the mother could not be imputed either to the father or the child. It was said that the contributory negligence which will bar a recovery 'must be that of the person from whom the cause of action is derived, or the beneficiary, or some one standing in such a relation to the beneficiary that the maxim, 'Qui facit per alium facit per se,' may be invoked.' 45 Or. at page 593, 78 P. at page 754: Hence the court declined to decide whether 'the interest of the father as heir is so remote that his contributory negligence should be no defense.' 45 Or. at page 592, 78 P. at page 754.

The question came before this court again in Gigoux v. Yamhill County, 73 Or. 212, 144 P. 437. An infant, 10 years and one month old, sustained an injury which resulted in her death as the result of a defect in a bridge maintained by the county. The defendant alleged that the parents were negligent in their care and treatment of the little girl after she was injured. The ruling of the trial court in refusing to receive evidence of the alleged negligence, was held not to be erroneous, on the authority of Bradshaw v. Frazier, 113 Iowa 579, 85 N.W. 752, 55 L.R.A. 258, 86 Am.St.Rep. 394; Ploof v. Burlington Traction Co., 70 Vt. 509, 41 A. 1017, 43 L.R.A. 108; and Macdonald v. O'Reilly, supra.

The only other case in which this court has had occasion to deal with the question is Bloomquist v. City of La Grande, 120 Or. 19, 251 P. 252, a wrongful death action brought by the administratrix of the estate of a minor child, who was drowned in an irrigation ditch in a city street which the defendant city negligently left unguarded. Contributroy negligence of the parents was held 'not to be imputed to or to affect the rights of the infant or his personal representative.' 120 Or. at page 24, 251 P. at page 253. The court distinguished cases 'where the action is brought for the direct benefit of the parents and the proceeds of the judgment do not go into the estate but go directly to the parents as their individual property.' The Employers Liability Statute was cited as illustrative of that class of cases, the court saying:

'There the proceeds of the action, if the beneficiaries are not residents within the state of Oregon, go directly to such person and not to the estate of the decedent. But that is not this case. Here the action is brought by the representative of the decedent in his individual capacity, and neither the decedent himself nor his personal representative is affected by the negligence of anyone not a party to the action. The circuit court was right in instructing the jury to the effect that what was said about the parents and their conduct with reference to the custody of the child is not a defense to the action. There is no pretense in the complaint of any contributory negligence of the decedent child.' 120 Or. at page 25, 251 P. at page 253.

It is apparent that the Gigoux and Bloomquist decisions are opposed to the contention of the defendant in this case.

Whether the negligence of one who may benefit by the recovery in a death action will bar recovery, either in whole or in part, depends upon the provisions of the particular statute authorizing the action. Restatement, Torts § 493; annotation, 2 A.L.R.2d 785 et seq. Many statutes are modeled upon Lord Campbell's Act (Stat. 9 and 10 Vict., ch. 93) and provide that the action may...