Roxana Petroleum Co. v. Cope

• Decision Date: 26 June 1928
• Docket Number: Case Number: 18107
• Citation: 132 Okla. 152,1928 OK 442,269 P. 1084
• Parties: ROXANA PETROLEUM CO. v. COPE.
• Court: Oklahoma Supreme Court

1928 OK 442

269 P. 1084

132 Okla. 152

ROXANA PETROLEUM CO. v. COPE.

Case Number: 18107

Supreme Court of Oklahoma

Decided: June 26, 1928

Syllabus

¶0 1. Parent and Child--Right of Parent to Wages of Minor Child--Right not Affected by Contract by Child--Statutes.

Section 8026, C. O. S. 1921, provides that if the father be dead, the mother is entitled to the custody, services, and earnings of her minor child. And section 8028, C. O. S. 1921, provides that the wages of a minor employed in service may be paid to him or her until the parent or guardian entitled thereto gives the employer notice that he claims such wages. And the express provision that the parent can demand the minor's wages at any time is inconsistent with the idea that the minor can make a contract or do any act which would affect this right of the parent.

2. Same--Sole Statutory Methods of Extinguishing Parental Rights.

Section 8030, C. O. S. 1921, provides that a child, when abuse of parental authority is established in a court of competent jurisdiction, may be freed from the dominion of his parent; and section 8038, C. O. S. 1921, says that the parent may relinquish to the child the right of controlling him and receiving his earnings and that abandonment by the parent is presumptive evidence of such relinquishment. These two sections of the statute declare the method by which a parent is deprived of his right to the custody, control, and services of his minor child, and thereunder the child is not clothed with any power to extinguish the parent's right.

3. Statutes--Repeals by Implication not Favored.

Repeals by implication are not to be favored, and a valuable right flowing from the statutes of this state and also existing by common law will not be held to be abrogated by subsequent statutes which do not expressly nor by necessary implication destroy such previously existing rights.

4. Same--Statutory Rights and Duties of Parent and Child not Abrogated by Implication.

By section 8025, C. O. S. 1921, it is provided that in the absence of assistance from the father, the mother must assist to the extent of her ability in the support and education of her child; and section 8034, C. O. S. 1921, says that if the parent neglects to provide necessary articles for her child who is under her charge, a third person may in good faith supply such necessaries and recover a reasonable value thereof from the parent. These duties of the parent remain until removed in one of the ways set out in sections 8030 and 8038, supra, and until this is done, the rights and duties of the parent and child remain, and they are not destroyed by an act of the Legislature which does not by express terms, nor by the necessary implication abrogate them.

5. Same--Parent's Right to Minor's Earnings and to Recover for Personal Injuries to Minor not Affected by Operation of Workmen's Compensation Law.

Not by the Workmen's Compensation Law of this state, nor by authority of any other statute can a minor, without the consent of his parent, by entering the employment of one conducting a hazardous business within the meaning of the Compensation Law, thereby extinguish there parent's right to the earnings of the minor and the right to recover for injuries inflicted upon the minor through the negligence of his employer.

6. Same--Parent's Right to Sue for Injuries to Child Resulting from Employer's Negligence not Waived.

The right of a parent to maintain an action for injuries to her minor child resulting from the negligence of the employer of such minor may be waived by the parent consenting to the minor entering such employment, but in the absence of proof that the mother consented in this case, her right of recovery was not waived. And the fact that she assisted in the employment of counsel to represent her minor son before the State Industrial Commission, to recover his compensation, constituted no waiver as to her right of recovery. The employer cannot defeat the recovery of compensation by the minor employees, for the reason that the employer does not rest under any disability to contract, and was bound to the minor employee under the Compensation Law. And the mother's recovery does not cover the same field as the allowance to her son under the Compensation Law.

7. Same--Recovery of Damages by Parent Sustained.

Evidence examined, and found sufficient to sustain plaintiff's recovery.

Commissioners' Opinion, Division No. 2.

Error from District Court, Tulsa County; Frank Mathews, Assigned Judge.

Action by Gertrude Cope against the Roxana Petroleum Company. From a judgment for the plaintiff, the defendant brings error. Affirmed.

Green & Farmer, for plaintiff in error.

J. M. Springer and Lewis W. Pratt, for defendant in error.

REID, C.

¶1 The plaintiff, Gertrude Cope, brought this suit to recover damages for an injury to her 16 year old son, who received the injury, she alleged, by the negligence of the Roxana Petroleum Company, a corporation, while in its employment. The petition stated a cause of action.

¶2 The defendant pleaded contributory negligence, assumption of risk, and specially that the injury to the employee came within the purview of the Oklahoma Workmen's Compensation Law, and that said employee had filed a claim therefor, and received full compensation for his injury, and all medical and hospital bills had been paid by the defendant, and that therefore the plaintiff had no cause of action against the defendant.

¶3 Plaintiff's reply was a general denial, and she further denied that the proceedings before the Industrial Commission constituted any defense to her cause of action.

¶4 Upon a verdict of a jury the plaintiff had judgment, from which the defendant appealed. The parties will be referred to as they stood in the trial court.

¶5 The evidence showed that the plaintiff, a widow for 12 years, lived at Neosho, Mo. That in August, 1920, her son, Ernest Cope, came to Oklahoma, and that his mother understood that he was on vacation, visiting a relative. While here he got employment from the defendant, near Cleveland, Okla., and on the 28th day of September, 1920, through the negligence of the defendant he sustained an injury, which maimed and crippled his right hand and rendered it permanently almost useless.

¶6 There is no evidence showing that the mother of this boy consented to his employment, or had any knowledge of it until several days after the injury, when she learned of his accident and visited him at the hospital. And there is no allegation by the defendant that she had consented to it, or that she did any act by which she waived her right of recovery, or became estopped to claim it.

¶7 The employee filed a claim before the State Industrial Commission of this state and received compensation for his injury, and for his medical treatment, as provided for in the Workmen's Compensation Law.

¶8 Under the facts in this case, at common law, the employee could have recovered for his suffering and for his diminished ability to earn after he became an adult; and the mother being liable therefor, could have recovered for the expense of his medical treatment, and for his services during his minority. She sues for the last element of damage only.

The authority by which the mother attempts to recover in this case is referred to as a common law right. It is true that such right existed under the common law, but in section 8026, C. O. S. 1921, it is provided that if the father be dead the mother is entitled to the custody and services of her unmarried child, during his minority. This right being fixed by statute it necessarily follows that if one by his negligence or willful conduct deprives the mother of these services he must answer in damages to her. Therefore, she has a right with stronger foundation than if it rested entirely upon the common law.

¶9 Let it be remembered in beginning the consideration of this question, that the Compensation Law of this state makes no mention of minors, and it is only by implication that they can be included within any section of that law; and this seems to be admitted. And having by implication brought them within the Compensation Law and given them thereunder the rights of adults; upon this implication, as a foundation, we are then asked to hold that the act has changed, abrogated, and superseded the common law and older statutory rights of the parents. And that by building one presumption or implication upon another we should destroy the rights of parents which have existed, without question until we were here asked to apply this new and strange doctrine.

¶10 No authority is necessary to sustain the proposition that repeals by implication are not to be favored, and that to strike down a valuable right given by a statute, and also existing by common law, merely upon an inference to be drawn from a new statute, presents an unhappy manner of adjudicating those rights and holding that they no longer exist.

¶11 By section 8025, C. O. S. 1921, it is provided that in the absence of assistance from the father, that the mother must assist to the extent of her ability in the support and education of her child; and section 8034, C. O. S. 1921, contains the further provision that if a parent neglects to provide necessary articles for his child who is under his charge, a third person may in good faith supply such necessaries and recover the reasonable value thereof from the parent.

¶12 The foregoing are reasonable burdens placed upon the parent for the benefit of the child, but in return therefor the law says that the parent is entitled to the services of the child during his minority. However, we are asked to hold, in effect, in this case, that the child by his conduct in entering into a hazardous occupation can destroy the right of the parent and leave remaining the liability of the parent to the child.

In the case of Sweet v. Crane et al., 39 Okla. 248, 134 P. 1112, a father brought suit to recover for the earnings of his minor children. The then...