Rock Island Coal Mining Co. v. Allen

• Decision Date: 29 April 1924
• Docket Number: Case Number: 13492
• Citation: 1924 OK 508,106 Okla. 188,233 P. 1060
• Parties: ROCK ISLAND COAL MINING CO. v. ALLEN.
• Court: Oklahoma Supreme Court

1924 OK 508

233 P. 1060

106 Okla. 188

ROCK ISLAND COAL MINING CO. v. ALLEN.

Case Number: 13492

Supreme Court of Oklahoma

Decided: April 29, 1924

Syllabus

¶0 1. Death -- Action for Wrongful Death--Limitations--Statutes.

Sections 190 and 824, Comp. Stat. 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.

2. Same--Time for Second Action After Dismissal of First.

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. Stat. 1921, and the court has jurisdiction to hear the cause on the merits.

3. Trial--Demurrer to Evidence -- When Overruled.

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.

4. Action for Wrongful Death--Sufficiency of Evidence.

The record examined, and held, the testimony sufficient to sustain the judgment.

5. Master and Servant--Wrongful Death of Servant -- Instruction -- Assumption of Risk.

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 jack house, 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, article 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.

Error from District Court, Pittsburg County; Harve L. Melton, Judge.

Action by Martha J. Allen against Rock Island Coal Mining Company. Judgment for plaintiff, and defendant brings error. Affirmed.

C. O. Blake, W. H. Moore, and A. W. Harries, for plaintiff in error.

J. S. Arnote, for defendant in error.

THREADGILL, C.

¶1 In considering the questions involved in this controversy the plaintiff in error will be designated as defendant, and the defendant in error as plaintiff, as they appeared in the trial court.

¶2 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. Stat. 1921, by reason of the death of her husband October 25, 1919, while an employe of the defendant and by reason of its negligence as stated in the petition.

¶3 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.

¶4 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 number 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 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:

"Action for Death by Wrongful Act. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

¶5 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. Stat. 1921, and not subject to its provisions. This section reads as follows:

"Limitation of New Action. If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

¶6 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, and the court held as follows:

"Section 422 of the Civil Code creates a right of action for damages for death by wrongful act which did not exist at common law, and which does not obtain in the absence of such act. The limitation of two years prescribed in the act in which such action must be commenced is a condition imposed upon the exercise of the right of action granted, and this time is not extended by the pendency and dismissal of a former action, as provided in section 23 of the Civil Code."

¶7 Defendant cites, also, the following cases in support of its contention: Kerley v. Hoehman 74 Okla. 299, 183 P. 980; Gregory et al. v. Southern P. Co., 157 F. 113, Partee v. S. L. & F. Ry. Co., 204 F. 970. Upon these authorities the defendant claims that its demurrer should have been sustained on the ground of the bar of the statute of limitation.

¶8 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 P. Ry. 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 inhered 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.

¶9 It is true this case is strong against the contention of the plaintiff in this section 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 question here presented is one of first instance in this court. Our decision is therefore untrammeled by any former controlling opinion, and is based upon and induced by an examination of many decisions arising upon kindred statutes and the reasoning therein employed. The precise question has seldom arisen. Questions analogous in their nature are of frequent occurrence."

¶10 The court in the Rodman Case seems to have based its decisions 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.

¶11 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 being included in the cases mentioned in the chapter...