St. Louis & S. F. R. Co. v. Goode
| Decision Date | 12 May 1914 |
| Docket Number | Case Number: 2688 |
| Citation | 142 P. 1185,42 Okla. 784,1914 OK 237 |
| Parties | ST. LOUIS & S. F. R. CO. v. GOODE, Adm'x. |
| Court | Oklahoma Supreme Court |
¶0 1. DEATH--Action--Right of Action-- Personal Injuries. The right of action of a person, injured through the wrongful act of another, to recover the damages sustained thereby, existed at common law, but abated upon the death of such injured person. This common-law right of action survives, and is thus preserved, in the personal representative of decedent, by the terms of sections 5943, 5944, Comp. Laws 1909 (Rev. Laws 1910, secs. 5279,5280), and the cause of action and its survival are quite independent of sections 5945, 5946, Comp. Laws 1909 (Rev. Laws 1910, secs. 5281, 5282), relating to the recovery of damages for the benefit of certain beneficiary therein named. And such action may be prosecuted to final judgment by the administrator, notwithstanding death resulted from such injuries.
2. EXECUTORS AND ADMINISTRATORS--Assets-- Right of Action for Personal Injuries. The damages recoverable in such action, when revived, are only such as were sustained by the injured person in his lifetime (such as accrued in the period between the injury and his death), and when recovered are assets of his estate, and are not for the benefit of the widow and next of kin, except as they may take as heirs upon the final distribution of the estate.
3. SAME--Judgment--Assets of Estate--Recovery for Wrongful Death--Bar to Subsequent Recovery. Sections 5945, 5946, Comp. Laws 1909 (sections 5281, 5282, Rev. Laws. 1910), create a new cause of action, to be prosecuted for the exclusive benefit of the beneficiaries named therein; the damages recovered in such suit do not become assets of decedent's estate. Such action is not dependent upon any common-law right, and the right to maintain same is independent of sections 5943, 5944, Comp. Laws 1909 Rev. Laws 1910, secs. 5279, 5280). Nor will a recovery under these sections for the benefit of the widow and next of kin bar a recovery for the benefit of the estate of decedent, on account of the suffering and loss the decedent sustained through the injuries wrongfully inflicted on him, where death was not instantaneous.
4. WITNESSES-- Competency--Husband and Wife. Neither the statute nor the common law prevents one spouse, after the marriage relation has terminated, from testifying, in a case in which the other is a party, as to independent facts, within the knowledge of the witness, and not coming within the definition of privileged communications.
5. APPEAL AND ERROR-- Judgment--Remittitur. Where a verdict in a damage suit itemizes the damages allowed, and some of the amounts are not justified under any view of the evidence, but the other amounts allowed seem to have been proper, the court being able to separate the legal from the illegal allowances, plaintiff will be offered the right to remit the amount he is not entitled to receive.
6. APPEAL AND ERROR--Harmless Error--Instructions. Where an instruction has permitted the jury to award an illegal item of damage, and the illegal allowance can be clearly determined by this court on the record, and a remittitur to cover the illegal allowance is offered and accepted by plaintiff, the error in the instruction becomes harmless.
Error from District Court, Comanche County; J. T. Johnson, Judge.
Action by Gertrude Goode, as administratrix of Frank R. Goode, deceased, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed on condition.
W. F. Evans, R. A. Kleinschmidt, Stevens & Myers, and J. H. Grant, for plaintiff in error
J. L. Hamon and Chas. Mitschrich, for defendant in error
¶1 In the summer of 1906, Frank R. Goode, while a passenger on plaintiff in error's train, was seriously injured in a collision. On September 15, 1906, he instituted this suit to recover damages because of personal injuries received in the sum of $ 30,000, also for $ 3,000 for loss sustained by his business and $ 750 expended for physicians, nurse hire, drug bills, hotel expenses, etc., incurred because of his injuries. On October 11, 1906, while this suit was pending and before its trial, he died as a result of the injuries sustained in the collision.
¶2 After Goode's death his widow qualified as administratrix and brought a new action to recover the damages allowed by statute to the widow and next of kin. This second suit was transferred on motion of the plaintiff in error to the United States court for the Western district of Oklahoma, where a recovery was had, which was thereafter paid.
¶3 On February 20, 1907, this suit, brought by Goode in his lifetime, was revived in the name of Gertrude Goode, administratrix, over the objections of the railroad company, and was thereafter tried in the district court of Comanche county, resulting in a recovery of damages for the benefit of the estate of the deceased in the sum of $ 9,750; the jury in its verdict having itemized the damages as follows: $ 7,000 general damages; $ 2,000 loss to business of deceased; $ 750 for medical attendance, nurses, hotel bills, etc.
¶4 No contention is made in the case that the death of Goode was not caused by the negligent acts of the railroad company, and, for the purposes of the case, we take it that defendant's actionable negligence is admitted. So in this situation it is apparent that the controlling question is as to whether or not, under the statutes in force in this state, a recovery for the benefit of the widow and children, on account of the wrongful death of the husband and father, bars a right of recovery by the personal representative of the deceased, of the damages resulting to his personal estate on account of the wrongful act, where the death resulting therefrom was not instantaneous.
¶5 The contention of defendant below, as stated in the brief, is:
"Since the death of Frank R. Goode resulted from the injuries received, the right of action for his injuries abated on his death, and but one action could be maintained, that for wrongful death."
¶6 The plaintiff, defendant in error here, states her contention as follows:
"We contend that two separate and independent causes of action exist in the event death results therefrom (except in cases of instantaneous death): One for the benefit of his estate, in which the measure of damages is the same as it would have been had he lived and prosecuted the action to final judgment limiting the damages, of course, to the date of his death; the other for the sole use and benefit of the widow and next of kin, the measure of damages in the latter being such amount, as, in the good judgment of the jury, will compensate the widow and children, or next of kin, for the pecuniary loss they suffered by reason of his death."
¶7 The statutes of Oklahoma (Comp. Laws 1909), the construction of which, it is admitted, must determine the question presented here, follow:
¶8 The next section (5946, Comp. Laws 1909, Rev. Laws 1910, sec. 5282) merely relates to who may prosecute the action under certain contingencies and has no important bearing on the question being considered.
¶9 In the instant case it must be conceded that Goode died because of the actionable negligence of defendant; that he received injuries so severe that they later caused his death; that in the interim he suffered great pain; that his injuries required and received expensive medical attention, nursing, etc., with hotel and drug bills, and the absolute loss of his time; that this resulted in damage and loss to his estate, and was unquestionably recoverable by him at the time this suit was filed. Was the right to have these damages lost at the time he died, and, if so, why? The decision of this case rests on an answer to the above question.
¶10 At common law the injured person could recover damages for the injury done his person, which included pain and suffering, and also for that occasioned his personal estate, but for the fact of his death; his death, however, prevented a recovery by abating the suit. The right to recover for the personal injury, however, was a common-law right. The recovery allowed by Lord Campbell's Act, 9-10 Vict., for pecuniary loss to the family (the widow and children), or next of kin, occasioned by the death of the injured person, was unknown to the common law. It stands solely on the statute, not only on the right to prosecute the suit, but for the very right itself. The action for the injury first mentioned only needs a statute to enable the injured person to prosecute his suit (to keep it alive and from abating); he had the right (the action) at common law.
¶11 Thus far there is slight...
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