Ross v. Robinson

• Decision Date: 08 September 1942
• Citation: 128 P.2d 956,169 Or. 293
• Parties: ROSS <I>v.</I> ROBINSON
• Court: Oregon Supreme Court

169 Or. 293

128 P.2d 956

ROSS

v. ROBINSON

Supreme Court of Oregon.

Argued April 1, 1942.

Argued on rehearing September 8, 1942.

Affirmed April 28, 1942.

Reversed September 15, 1942.

Automobiles — Evidence — Skid marks — Speed

1. In action for death of passenger of automobile which collided with defendant's approaching automobile as driver attempted to pass a third automobile, evidence concerning two skid marks allegedly made by defendant's automobile introduced to prove that defendant was driving at an excessive rate of speed presented a fact question for the jury.

Death — Evidence — Life expectancy

2. In death action to recover damages for benefit of estate of 48-year-old woman who did the ordinary work of a housewife and had a life expectancy of 23.36 years, evidence was sufficient to warrant submission of case to jury on question of pecuniary loss suffered by estate.

Death — Damages

3. In surviving husband's death action as administrator to recover damages for benefit of deceased wife's estate, it was proper for husband to show that property which he owned was acquired through joint efforts of husband and wife and to show what wife's duties were in regard to conducting eighteen-acre home place.

Appeal and error — Automobiles — Speed

4. In automobile accident case, overruling of defendant's objection to question asking state police officer to testify concerning distance in which an automobile traveling at 50 miles an hour can stop safely, on ground that proper foundation had not been laid, was not error where any deficiency in showing of qualification of officer was supplied on his cross-examination by defendant, and defendant himself gave testimony more favorable to plaintiff than that given by officer.

Trial — Instructions — Basic rule

5. In action for death resulting from collision between automobiles approaching from opposite directions, trial court's reading of statute relating to basic rule governing speed in instructing jury was not erroneous, notwithstanding reference to caution in regard to a vehicle entering a highway.

Trial — Instructions — Speed

6. In action for death resulting from collision between automobiles on highway outside city, instruction referring to an indicated speed of 45 miles per hour outside business or residence districts was improper but was not prejudicial to defendant, where trial judge had charged that there was no speed limit in the state and had then read to jury the law embodying basic rule governing speed.

ON REHEARING

Appeal and error — Demurrer — Cause of action

7. The objection that a complaint does not state facts sufficient to constitute a cause of action or suit is never waived and under a rule of the supreme court such objection may be taken at any time.

Appeal and error — Demurrer — Cause of action

8. Where defendant's demurrer to complaint on ground that it did not state a cause of action was overruled by trial court, failure of record to reveal reasons assigned by defendant for the objection did not "waive" the objection and question of complaint's sufficiency could be raised in the supreme court for first time on rehearing.

Death — Right of action

9. A right of action for death caused by wrongful act or omission of another is statutory and is granted to the personal representative for benefit of those specified in the statute in the order named, and it is only in event of the nonexistence of preferred beneficiaries that there is a right of action in favor of other beneficiaries.

Death — Right of action

10. The only action that could be brought for the wrongful death of wife who was survived by her husband is by administrator for benefit of the husband and not for the benefit of decedent's estate, as no right of action for benefit of estate ever came into existence when husband survived.

Death — Right of action

11. In order to maintain an action under the wrongful death statute for the benefit of the decedent's estate, the complaint must show the nonexistence at the time of decedent's death of all the beneficiaries named in the statute ahead of decedent's estate.

Death — Pleading — Cause of action

12. A complaint, in death action by administrator for the benefit of decedent's estate, which failed to state whether deceased left surviving spouse or dependents, did not state facts sufficient to constitute a cause of action.

Death — Right of action

13. Under wrongful death statute, a right of action does not vest in a deferred beneficiary upon failure of primary beneficiary to assert his right because the right of a deferred beneficiary depends wholly upon the nonexistence of prior beneficiaries and not upon failure of such beneficiaries to assert their rights.

Appeal and error — Demurrer — Cause of action

14. That a wrongful death action was tried on theory that estate of decedent had the exclusive right of recovery did not preclude

defendant from raising in supreme court on rehearing the objection that complaint did not state facts sufficient to constitute a cause of action, in that it failed to state whether decedent was survived by his spouse or dependents.

                  Testimony as to tire marks on pavement apparently made by
                motor vehicle, note, 92 A.L.R. 475. See, also, 5 Am. Jur. 852
                  See 16 Am. Jur. 68, 76
                  25 C.J.S., Death, §§ 32, 122
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Josephine County.

H.D. NORTON, Judge.

Action by Frank P. ROSS, administrator of the estate of Lyna M. ROSS, deceased, against Everett E. Robinson to recover damages for the death of Lyna M. Ross. From a judgment for plaintiff, defendant appeals.

AFFIRMED. REHEARING GRANTED. REVERSED.

Don R. Newbury, of Medford, for appellant.

W.T. Miller, of Grants Pass (Orval J. Millard, of Grants Pass, on the brief), for respondent.

BAILEY, J.

The defendant, Everett E. Robinson, has appealed from a judgment in favor of the plaintiff, Frank P. Ross, administrator of the estate of Lyna M. Ross, deceased, in this action brought by Ross to recover damages for the benefit of the decedent's estate. Mrs. Ross died December 14, 1939, from injuries received by her December 12, 1939, in a collision between her husband's automobile, in which she was riding as a passenger, and an automobile owned and driven by the defendant.

The accident occurred on what is commonly known as the Redwood highway, approximately two miles west of the city of Grants Pass. Frank P. Ross, accompanied by his wife, Lyna M. Ross, in the front seat of his car, a 1935 Chevrolet sedan, was driving in a westerly direction. According to his testimony, he was driving at a rate of thirty to thirty-five miles an hour, when he overtook C.C. Pritchett, driving a 1926 Studebaker pick-up car in the same direction. Pritchett testified that his car was proceeding at about twenty-five to thirty miles an hour, while Ross's testimony was that the Studebaker was traveling at a speed of twenty to twenty-five miles an hour.

Ross testified that when he was within thirty or forty feet of the Studebaker he looked ahead in the highway and noticed a car approaching at a distance he estimated as about three hundred yards. He turned to the left side of the highway and undertook to pass the Studebaker, and when about opposite the Studebaker his own car collided with the defendant's automobile, a 1939 Buick coupe, which was the car he had seen approaching. The impact occurred at the left edge of the highway, almost off the pavement and on the shoulder of the road. The right front end of the defendant's car struck the right side of the Chevrolet, near the front.

The accident occurred at approximately 4:50 o'clock in the afternoon of December 12. Headlights were not required for visibility and none of the cars had any burning. The roadway is straight and practically level for a distance of half a mile or more in both directions from the place of the collision. The paved part of the highway is nineteen feet in width, and the shoulders along the sides are between eight and nine feet wide.

When Pritchett saw that a collision appeared inevitable, he drove his car far to the right, on the north side of the highway, to leave room for the other two cars to pass.

The acts of negligence charged by the plaintiff against the defendant are the following:

"(a) In wholly failing to keep a lookout for other automobiles then and there on the highway, and

"(b) Traveling at a highly dangerous and excessive rate of speed considering the traffic and surface, condition and width of the highway, and the position of other automobiles on the highway, including the automobile so owned and operated by the plaintiff, Frank P. Ross."

Two of the assignments of error are based on the failure of the court (1) to grant the defendant's motion for an involuntary nonsuit and (2) to grant the defendant's motion for a directed verdict in his favor. The motions were in writing and submitted without argument. The motion for a directed verdict, worded similarly to that for an involuntary nonsuit, was "on the ground and for the reason that there has been no evidence received sufficient to establish or prove the allegations of the complaint and the issues of the case."

1. One of the reasons urged by the defendant in his brief, in support of the above mentioned motions, is that there was no evidence that he "was violating the basic rule of the Oregon statute as to speed". The plaintiff, in order to prove that the defendant was driving at an excessive rate of speed, introduced evidence as to two skid marks, presently to be discussed, which, he asserts, were made by the defendant's Buick. The defendant, on the other hand, argues that there is no evidence that the longer of the two marks was made by his car. He contends, in fact, that the evidence is conclusive that that skid mark was not caused by his car at all. We shall first refer to the testimony of the plaintiff's witnesses...