Weatherman v. Victor Gasoline Co., Case Number: 29707

• Decision Date: 12 May 1942
• Docket Number: Case Number: 29707
• Parties: WEATHERMAN, Adm'x, v. VICTOR GASOLINE CO.
• Court: Oklahoma Supreme Court

1942 OK 191

130 P.2d 527

191 Okla. 423

WEATHERMAN, Adm'x, v. VICTOR GASOLINE CO.

Case Number: 29707

Supreme Court of Oklahoma

Decided: May 12, 1942

Syllabus

¶0 1. DEATH--In action for wrongful death, two-year period of limitation begins to run from date of death and not from date of injury.

In an action maintained under 12 O. S. 1941 §1053, by the personal representative of a deceased, to recover for the death on the theory it was due to the wrongful act or omission of another, the period of limitation on the right to institute the action as therein provided commences to run from the date of the death, not the date of the injury.

2. WORKMEN'S COMPENSATION--Recovery in action for wrongful death against employer not precluded by award of workmen's compensation during lifetime.

Recovery by an injured employee of an award under the Workmen's Compensation Law does not preclude the subsequent maintenance of an action under 12 O. S. 1941 § 1053, by his personal representative to recover against the employer for his death on the theory that he died by reason of the wrongful act or omission of the employer.

3. SAME--Recovery for pain and suffering after death of employee precluded by award of workmen's compensation.

Compensation under the Workmen"s Compensation Act comprehends pain and suffering connected with the compensable injury for which the award was made and prevents the maintenance of an action for a second and subsequent recovery for such pain and suffering after the death of the injured employee.

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Action by Stella Weatherman, administratrix of the estate of W. M. Weatherman, deceased, against the Victor Gasoline Company. Demurrers to petition sustained, and plaintiff appeals. Affirmed in part; reversed in part; remanded in part.

Speakman & Speakman, of Sapulpa, for plaintiff in error.

J. E. Thrift, of Sapulpa, for defendant in error.

DAVISON, J.

¶1 This action was instituted in the district court of Creek county by Stella Weatherman, as administratrix of the estate of W. M. Weatherman, deceased, against the Victor Gasoline Company, a corporation, as defendant.

¶2 The plaintiff, as administratrix of her husband's estate, is seeking to recover damages from the former employer of her husband on two causes of action: the first, for his death, which is asserted to have resulted from injuries received in the course of the employment as a result of the employer's negligence; the second, for the husband's pain and suffering asserted to have resulted from the same cause between the date of the injury and the date of his death. The injury was May 5, 1931, the death April 16, 1934. This action was instituted March 25, 1936.

¶3 The defendant demurred to the petition of the plaintiff as a whole on the grounds that the two causes of action therein stated were improperly joined, and separately to each cause of action on the theory that the same did not state facts sufficient to constitute a cause of action, special reference being made to the statute of limitations.

¶4 The court sustained the challenge to the petition as a whole on the grounds of misjoinder and the separate challenges to the sufficiency of each of the causes of action. The plaintiff elected to stand on her petition and appealed from the order of the court dismissing the action.

¶5 Since the court held that each of the purported causes of action was legally insufficient, no opportunity was either sought or granted the plaintiff to file separate petitions on the causes of action and prosecute the same individually. 12 O. S. 1941 § 270.

¶6 Upon review of the ruling of the trial court we have concluded that the first cause of action was sufficient, but the second asserted cause of action was not. Our conclusion that only one of the causes of action was invulnerable when challenged dispenses with the necessity of considering the soundness of the trial court's ruling on the question of joinder.

¶7 We shall treat the causes of action in their numerical sequence.

¶8 As we have previously noted, the first cause of action was for death of the plaintiff's husband asserted to have been occasioned by the previous negligence of the defendant as his employer. The negligence, if any, occurred almost five years prior to the institution of this action, but the death antedated this action less than two years.

¶9 The defendant has, in addition to other questions, raised the statute of limitations under its demurrer. This it was entitled to do under a general demurrer even without specific reference to the statute. Johnson v. State, 173 Okla. 508, 49 P.2d 141.

¶10 The plaintiff's first cause of action is based upon 12 O. S. 1941 § 1053, which provides:

"When the death of one is caused by the wrongful act or omission of another, the personal representative 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 surviving spouse and children, if any, or next of kin; to be distributed in the same manner as personal property of the deceased. R. L. 19 10, § 5281; Laws 1925, ch. 125, p. 177, § 1.''

¶11 It is the majority rule under statutes of this character that the limitation provided begins to run from the death of the party injured, and that the general statute of limitations applicable to actions based upon tort does not operate as a bar even though the period prescribed by such statute has transpired after the date of the injury and before the date the action was commenced or even before the death. Annotation 72 A.L.R. 1313; 16 Am. Jur. 113.

¶12 This court has committed itself to the majority rule in a case where the statute had not run prior to the date of death. Lindsay v. Chicago, R. I. & P. R. Co., 56 Okla. 234, 155 P. 1173.

¶13 While a trend toward the minority and opposing view has been noted in a subsequent annotation dealing with the question (99 A.L.R. 259), we are not disposed to depart from our previous holding. The reasons for the holding are set forth in our previous decision and will not be restated herein.

¶14 In the case at bar the only method of redress available to the deceased during his lifetime was a proceeding under the Workmen's Compensation Act. As reflected by plaintiff's petition, he asserted his rights under that law and his award for compensation was judicially approved in this court. Victor Gasoline Co. v. Weatherman, 163 Okla. 113, 21 P.2d 35. He could not have commenced any other proceeding prior to his death. Thus the statute of limitations was not running against him during his lifetime as to any and all elements of damage or rights of actions comprehended by compensation under the act. We are therefore not confronted (insofar, at least, as the first cause of action is concerned) with a situation in which the statute barred recovery prior to death.

¶15 The question of whether the rule adopted and approved in Lindsay v. Chicago, R. I. & P. R. Co., supra, should be extended and applied to cases in which the right of action which existed prior to death had been barred by the statute of limitations is therefore not presented herein and no opinion is expressed on the question.

¶16 It is pointed out by the defendant that liability in the case of Lindsay v. Chicago, R. I. & P. R. Co., supra, was based upon the Federal Employers' Liability Act; that that case was decided in 1916. The defendant also calls our attention to the fact that the Supreme Court of the United States has adopted a different view in connection with liability under the federal act. Flynn v. N. Y., N. H. & Hartford Ry. Co., 75 L. Ed. 837, 283 U. S. 53, 51 S. Ct. 357. The defendant reasons that our previous case on this point is thus destroyed as judicial precedent. Compare and consider, however, Reading Co. v. Koons, 271 U. S. 58, 46 S. Ct. 405, 70 L. Ed. 835, cited by this court in Moore v. Atchison, T. & S. F. R. Co., 187 Okla. 534, 104 P.2d 236.

¶17 The case at bar does not fall under the federal act. Assuming, without deciding, that in another case falling under that act we should yield to the federal view (if it is then different from our own), it does not follow that our own inclination to conform to the majority view on questions of this character should be abandoned when, as in the case at bar, state statutes alone are involved. We therefore conclude, and hold, that plaintiff's first cause of action is not barred by the statute of limitations.

¶18 It is suggested in the briefs that since the deceased had recovered under the Workmen's Compensation Act, the action which "he might have maintained had he lived" had in fact been maintained and satisfied through the award. That, therefore, this cause of action cannot be maintained.

¶19 Regardless of the arguments that might be advanced in support of such a position had the deceased instituted and prosecuted a common-law action to final judgment, there is obviously no substantial merit in such a position as applied to the situation presented in this case.

¶20 On the question of whether prior recovery in a common-law action by the deceased in an action based on the injury which resulted in death precludes subsequent recovery under the statute, the authorities are not in accord. 16 Am. Jur. 98; Annotation 39 A. L. R. 579.

¶21 As this court has previously pointed out, section 1053, supra, does not by virtue of the above-quoted clause therein inserted or any other provisions of the section operate as a continuance of any right of action which the deceased had prior to his death, but, on the contrary, provides a new and independent cause of action. City of Shawnee v. Cheek, 41 Okla. 227, 137 P. 724.

¶22 In the case at bar there is a particular reason peculiar to this jurisdiction which prevents the former recovery from precluding the subsequent...