Rock Island Coal Min. Co. v. Allen
Decision Date | 29 April 1924 |
Docket Number | 13492. |
Citation | 233 P. 1060,106 Okla. 188,1924 OK 508 |
Parties | ROCK ISLAND COAL MINING CO. v. ALLEN. |
Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 24, 1925.
Syllabus by the Court.
Sections 190 and 824, Comp. St. 1921, being in the same chapter of civil procedure, and both sections being created by the same Legislature at the same time are in pari materia, and the limitation provided for in the former is applicable to actions provided for in the latter.
An action for wrongful death brought within two years from the date of death, and disposed of otherwise than upon the merits after the expiration of two years, and another action commenced within one year from the failure of the first action, is within the application of section 190, Comp. St 1921, and the court has jurisdiction to hear the cause on the merits.
It is not error to overrule a demurrer to the evidence, if there is any testimony tending to prove the material allegations of the petition.
The record examined and held the testimony sufficient to sustain the judgment.
The instruction examined and held sufficient to cover and explain all the issues submitted to the jury in plain language. Held, further, that fifth paragraph of the instruction which reads as follows:
"You are instructed that the deceased by entering the employment of the defendant and engaging in the work of handling the powder in the jackhouse, which was a dangerous occupation assumed the ordinary risks and dangers incident thereto not only so far as they were known to him, but so far as they could have been known by the use of ordinary care on his part, and if the explosion which resulted in the death of deceased was the result of the ordinary risks and dangers incident to this particular employment, the defendant would not be liable, unless the defendant was guilty of some negligence which proximately caused said explosion,"-is not in conflict with section 6, art. 23, of the constitutional provision as to assumption of risk, because the court told the jury that the deceased did not assume the risk of defendant's negligence.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
Action by Martha J. Allen against the Rock Island Coal Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.
C. O. Blake, of El Reno, and W. H. Moore and A. W. Harries, both of McAlester, for plaintiff in error.
J. S. Arnote, of McAlester, for defendant in error.
In considering the questions involved in this controversy the plaintiff in error will be designated as defendant, and the defendant as plaintiff, as they appeared in the trial court.
The action was brought by the plaintiff, Martha J. Allen, on March 3, 1919, in the district court of Pittsburg county, on behalf of herself and children, against the defendant for damages accruing to them under section 824, Comp. St. 1921, by reason of the death of her husband, October 25, 1919, while an employee of the defendant, and by reason of its negligence as stated in the petition.
A suit based upon the said cause of action was begun by the plaintiff against the defendant, in Latimer county, on February 18, 1916, which was dismissed for lack of prosecution, March 5, 1918. The action in Latimer county was brought in the statutory limitation of two years, and this action was brought within one year after the first action had been dismissed.
A demurrer was interposed to the amended petition on the ground it did not state facts sufficient to constitute a cause of action, and that same was barred by the statute of limitation, and being overruled by the court, defendant saved its exception, and this action of the court was made one of the assignments of error in this appeal. There are two other assignments, one for refusing to give defendant's requested instruction No. 1, asking for directed verdict, and the other for giving instruction No. 5, but the principal question involved is whether or not the action was barred by the statute of limitation, that is, does section 190, of our statute, which provides that, where an action is dismissed otherwise than upon the merits, that a new action may be brought within the one year after such dismissal, apply to this case.
1. The section of the statute, upon which the action is based reads as follows:
Defendant contends that this section is complete within itself, and the limitation imposed is a limitation upon the right given, and not upon the remedy provided for the reason the action is one created by statute, and did not originate in the common law, and is not affected by section 190, Comp St. 1921, and not subject to its provisions. This section reads as follows:
Defendant contends that the section creating the action for damages for wrongful death is taken from the Kansas statute, and the above general limitation statute was taken from same source, and these two sections were construed by the Supreme Court of Kansas in the case of Rodman v. Mo. P. Ry. Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 704, and the court held as follows:
Defendant cites also the following cases in support of his contention: Kerley v. Hoehman, 74 Okl. 299, 183 P. 980, 8 A. L. R. 141; Gregory et al. v. Southern P. Co. (C. C.) 157 F. 113; Partee v. S. L. & F. Ry. Co., 204 F. 970, 123 C. C. A. 292, 51 L. R. A. (N. S.) 721. Upon these authorities the defendant claims that its demurrer should have been sustained on the ground of the bar of the statute of limitation.
We have examined these authorities and they seem to support, only partially, the defendant's contention. The Rodman Case was decided in November, 1902. The construction of similar statutes to ours was under consideration. The suit was brought by the widow in the district court for damages against the Union Pacific Railway Company on account of wrongful death which occurred by engine of railroad on April 14, 1896, and thereafter removed to the United States Circuit Court, where it was dismissed December 1, 1898, and another action was brought by the administratrix in the district court on December 28, 1898, being over two years from the date of the death, and within one year from the dismissal in the United States court. The question of the bar of limitation was raised by the answer of defendant, and the demurrer to the testimony was sustained, and on appeal this ruling was upheld on the ground that the action was one created by the statute, and the limitation of two years was a restriction on the right, and adhered in the action, and was a condition precedent to bringing the suit, and not a restriction on the remedy. That the right did not exist under the common law, and the statute creating the right and providing a limitation in the act of creation must be construed strictly.
It is true this case is strong against the contention of the plaintiff in this action, and is a construction of the statute from which our statute was copied. But it must be remembered that the Rodman Case was decided in 1902, and in view of the fact that other courts have passed on similar statutes since that time, and some of the decisions are in conflict with the reasoning of this case, we do not think that it is sufficient, without the reasoning is sufficient, to be controlling or persuasive upon this court. It was the first case decided upon this identical question by the Kansas court, and Justice Pollock, who wrote the opinion, states as follows:
The court in the Rodman Case seems to have based its decision upon the following cases: Foster v. Ry. Co., 72 Miss. 886, 18 So. 380; Murphy v. Ry. Co., 80 Iowa, 26, 45 N.W. 392; Railroad v. Sanders, 86 Ky. 259, 5 S.W. 563; Gerren v. R. R. Co., 60 Mo. 405.
The question of limitation in the Foster Case, supra, turned on the fact that the statute providing a limitation in wrongful death cases was a statute separate and apart from the other provisions of the Code, and not...
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