White v. Mcgee

• Decision Date: 19 May 1931
• Docket Number: Case Number: 19593
• Citation: 299 P. 222,1931 OK 280,149 Okla. 65
• Parties: WHITE et al. v. McGEE et al.
• Court: Oklahoma Supreme Court

1931 OK 280

299 P. 222

149 Okla. 65

WHITE et al. v. McGEE et al.

Case Number: 19593

Supreme Court of Oklahoma

Decided: May 19, 1931

Syllabus

¶0 1. Parties--Persons Entitled to Intervene.

Any person may be permitted to intervene in an action where they have or claim an interest in the controversy, and where their substantial rights are in litigation.

2. Marriage--Marriage Between Persons Under Statutory Ages Voidable, not Void--Surviving Spouse Held Legal Widow.

Marriage between persons under the ages prescribed in section 7490, C. O. S. 1921, is voidable and not void.

In a marriage where the male is 17 years of age and the female is 15 years of age, and the male dies before any legal proceedings were taken to annul the marriage, held, the surviving spouse is the legal widow of such deceased.

3. Death--Right of Widow to Sue for Damages for Wrongful Death of Husband.

Upon the death of a husband leaving a widow as the sole surviving heir at law, and no personal representative having been appointed for the estate of the deceased husband, the widow is the proper person to maintain an action in damages for the wrongful death of the husband.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by Samuel K. White and Nellie E. White against Reece E. McGee et al. and Elizabeth Mae White, by her next friend, intervener. Judgment for defendants and intervener, and plaintiffs bring error. Affirmed.

G. H. Terrill and Walter & Hilpirt, for plaintiffs in error.

Ruth & Morris, for defendant in error, intervener.

CLARK, V. C. J.

¶1 This action was commenced in the district court of Oklahoma county by plaintiffs in error, Samuel K. White and Nellie E. White, against defendants in error, Reece E. McGee, Marland Pipe Line Company, Marland Oil Company of Oklahoma, and the Marland Refining Company, corporations, for damages for the death of their son, James Leo White, and allege that James Leo White died without issue or lawful wife; that plaintiffs in error are his sole and only heirs at law; that no administrator of the estate of James Leo White is or has been appointed and that said deceased's estate has not been administered; that a purported marriage was attempted between James Leo White, their son, and one Elizabeth Mae Wentworth, and that the same was unlawful for the reason that the said James Leo White was under the age of 18 years at that time, being only 17 years of age, and the said Elizabeth Mae Wentworth was only 15 years of age at the said time, and that the consent of the parents to said marriage was not obtained either orally or in writing; that James Leo White and Elizabeth Mae Wentworth did not live together at the time of his death, and had been separate and apart for some time prior thereof and that he had wholly abandoned and refused to live with and support her; that because of the nonage of the parties, said attempted marriage was not lawful and is expressly prohibited and forbidden by law; and that the said attempted marriage was made within the state of Oklahoma, and in violation of its statutes, and that she was not his lawful wife.

¶2 On December 2, 1927, by leave of court first had, Elizabeth Mae White filed motion for leave to intervene in said cause, asking that she be made a party defendant, and alleging that she was the lawful wife of James Leo White, deceased, and is the lawful widow and heir at law of James Leo White, and that the petition of plaintiffs below (plaintiffs in error here) attacks the validity of the marriage of James Leo White and herself, and therefore she is a proper party defendant.

¶3 Thereafter, Elizabeth Mae White, by Floyd C. Wentworth, her father and next friend, as intervener, filed a demurrer in said cause alleging that the petition failed to state facts sufficient to constitute a cause of action.

¶4 Thereafter, the plaintiffs in error filed a motion to strike intervener's petition and plea, alleging that the same is unlawful and fails to show that petitioner has or claims an interest in the controversy adverse to the plaintiffs' rights, or that she is a necessary party to the complete determination of the action, and that the petition is unverified; that intervener has at this time a cause of action pending, involving the same subject-matter and against the same defendants, and that a full determination of the present action would not prejudice her rights in her own action; and that she is interjecting herself in this action against the will or consent of both plaintiffs in error and defendants in error.

¶5 The court overruled said motion to strike and made said intervener a party defendant.

¶6 The general demurrer of intervener was sustained and plaintiffs in error refused to plead further. Judgment was entered for defendants below and the petition of plaintiffs below was dismissed. Motion for new trial was filed and overruled. Plaintiffs in error bring the cause here for review.

¶7 The first contention of plaintiffs in error is:

"1. Did the intervener have a right to come into this case over the objection of plaintiffs and did the court err in overruling their motion to strike?"

¶8 This assignment of error is without merit. The plaintiffs in error brought their action alleging in their petition they were the sole and only heirs at law of their deceased son, and alleged the marriage, but alleged that it was unlawful. Thereby a substantial right of the said intervener was being litigated.

¶9 Section 224, C. O. S. 1921, provides:

"The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in."

¶10 Section 219, C. O. S. 1921, provides:

"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein."

¶11 This section was construed in Edmondston v. Porter, 65 Okla. 18, 162 P. 692.

¶12 Where intervener voluntarily appears, the court has power to permit him to intervene. See Clevenger v. Lewis, 20 Okla. 837, 95 P. 230.

¶13 The next contention of plaintiffs in error is:

"2. Where alleged wife was a minor, aged 15, at the time of marriage, and alleged husband 17 years and no issue of such marriage, has the surviving infant the right under our law to sue for wrongful death of the other, or does this right go to the next of kin, and did the court err in sustaining intervener's demurrer?"

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