Wilson-Harris v. Sw. Tel. Co.

• Decision Date: 28 September 1943
• Docket Number: Case Number: 30389
• Citation: Wilson-Harris v. Sw. Tel. Co., 1943 OK 303, 141 P.2d 986, 193 Okla. 194 (Okla. 1943)
• Parties: WILSON-HARRIS, Adm'x, v. SOUTHWEST TELEPHONE CO. et al.
• Court: Oklahoma Supreme Court

1943 OK 303

141 P.2d 986

193 Okla. 194

WILSON-HARRIS, Adm'x, v. SOUTHWEST TELEPHONE CO. et al.

Case Number: 30389

Supreme Court of Oklahoma

Decided: September 28, 1943

Syllabus

¶0 1. DEATH--Action for wrongful death- Judgment as bar to subsequent action.

The provisions of 12 O. S. 1941 §§ 1053, 1054, creating a cause of action for wrongful death, contemplate but one action for the same death, and a recovery by one entitled to sue exhausts the remedy given by the statute and, so long as the judgment stands, bars a subsequent action, even though brought for the benefit of one whose damage was not alleged or proved in the first suit.

2. EVIDENCE--Judicial notice of former proceedings in court may be taken in passing on motion for judgment on pleadings.

In passing upon a motion for judgment upon the pleadings a trial court may take judicial notice of proceedings formerly pending before it, and allegations of the pleadings contrary to the facts so judicially noticed should be disregarded.

3. JUDGMENT--"privity" defined.

The term "privity" denotes mutual or successive relationship to the same rights or property.

4. EXECUTORS AND ADMINISTRATORS--Administrator in privity with predecessor.

An administrator of the estate of a decedent is in privity with his predecessor in office.

5. DEATH--Beneficiary in privity with one properly maintaining wrongful death action.

A person for whose benefit a wrongful death action is filed is in privity with the one who properly maintains such action.

6. JUDGMENT--Conclusiveness of judgment denying motion to vacate judgment.

A judgment of a court denying a motion to vacate a judgment concludes the parties and their privies, not only as to the grounds contained in such motion, but as to all grounds for the vacation of the judgment which might properly have been contained therein.

7. JUDGMENT--Former decision holding action for wrongful death was not barred by judgment secured by former administrator overruled.

The decision in L. E. Myers Co. v. Ross, 161 Okla. 186, 17 P. 2d 395, is overruled insofar as it is in conflict with this opinion.

Appeal from District Court, Lincoln County; J. Knox Byrum, Judge.

Action by Leanna Wilson-Harris, administratrix of the estate of Eli D. Harris, deceased, against the Southwest Telephone Company and the Town of Prague. From an adverse judgment, plaintiff appeals. Affirmed.

Joe Young, of Chandler, and Andrews & Andrews, of Oklahoma City, for plaintiff in error.

Thurman & Thurman, of Oklahoma City, W. E. Wells, of Prague, and Dudley, Hyde, Duvall & Dudley, of Oklahoma City, for defendants in error.

Coleman H. Hayes, John F. Butler, V. P. Crowe, and John H. Cantrell, all of Oklahoma City, amici curiae.

HURST, J.

¶1 This is an action for wrongful death. The questions presented are (1) whether a judgment obtained by an administrator for the benefit of the next of kin in an action where he alleged that deceased was single bars a subsequent action by a successor administrator for the benefit of one proven to be the widow, and (2) whether an attack on a judgment is barred by a former final order denying a motion to vacate the judgment.

¶2 Eli D. Harris was accidentally killed on August 26, 1935. Immediately thereafter M. L. Harris, his brother, applied for and obtained letters of administration upon his estate, giving no notice thereof to plaintiff. On October 30, 1935, plaintiff, claiming to be the widow of deceased because of an alleged common-law marriage, filed an instrument in the probate proceeding denominated "Petition of Heir." In it she stated that she was the surviving spouse of Eli D. Harris, deceased, and prayed that she be decreed one-half of his estate. She did not object to the appointment of M. L. Harris as administrator, but prayed that only such funds "as may be necessary to pay the debts, if any, and the costs of administration", be left in his hands. Her claim to the status of widow was resisted by the other heirs of deceased, including M. L. Harris in his individual capacity, and the matter was not heard by the county court until in October, 1936. At that time the court adjudged plaintiff to be the surviving spouse of deceased. An attempted appeal was dismissed by the district court on January 27, 1937, and we affirmed the order of dismissal on January 25, 1938 (Love, Adm'r, v. Wilson, 181 Okla. 558, 75 P. 2d 876), and the order adjudging her to be the widow became final.

¶3 On April 16, 1936, while plaintiff's claim was pending in the county court, M. L. Harris, as such administrator, filed an action in the district court of Lincoln county against defendants, Southwest Telephone Company and Town of Prague, to recover damages for the wrongful death of Eli D. Harris, alleging that his death was caused by concurring negligence on the part of defendants. He further alleged that deceased, at the time of his death, was a single man and left no issue, but that his brothers and sisters and certain others were his sole next of kin. An agreed judgment for $1,250 was entered and paid on May 23, 1936.

¶4 On May 25, 1936, plaintiff filed a motion to vacate the judgment, alleging that she was the widow of deceased, that her claim had been on file and pending in the county court since October 30, 1935, and that M. L. Harris had obtained the judgment by fraud in that he concealed the existence of plaintiff's claim from the court. Defendants filed responses to the motion and the matter was tried and taken under advisement on July 14, 1937. On July 19, 1937, the county court removed M. L. Harris as administrator of the estate of Eli D. Harris and appointed E. C. Love special administrator in his stead. This was suggested to the district court on July 21, 1937, the day on which the court was to announce its decision in the matter of vacating the judgment, and the court thereupon substituted Love as plaintiff in the place of M. L. Harris. Love then moved to vacate the judgment of May 23, 1936, on the same grounds as those alleged by plaintiff, plaintiff withdrawing her motion. The motion was denied. Notice of appeal was given but no appeal was ever perfected and the order denying the motion to vacate the judgment on the ground of fraud became final. On August 26, 1937, Love, as special administrator, commenced the present suit for damages on behalf of plaintiff as the surviving spouse of deceased. He alleged the same acts of negligence on the part of defendants as were alleged in the former suit by M. L. Harris, administrator, but made no mention of that action. The title of the case appears in its present form because of the later substitution of plaintiff as administratrix of the estate. Defendants, by answer, pleaded the former judgment as res judicata and consequently as a complete bar to the present action. Plaintiff, by reply, alleged most of the facts above set out, and in addition asserted that the defendants as well as M. L. Harris had actual knowledge of her claim or were charged with notice thereof, and that the former action was a fraudulent scheme to procure the rendition of a judgment for a nominal sum on behalf of the next of kin, who sustained no loss, rather than on behalf of the widow, who had sustained loss of support.

¶5 Defendants' motion for judgment an the pleadings was sustained, and plaintiff appeals.

1. Plaintiff contends that the former judgment is not res judicata of the present action because neither the parties nor the issues are the same. She asserts that there is no identity of parties because in the former action the administrator sued as trustee for the next of kin, while here the administratrix sues as trustee for the surviving spouse. She says that there is no identity of subject matter because in the former action the issue was the amount of damage sustained by the next of kin, while in the instant suit the issue is the damage sustained by the widow. It is apparent that the two amounts might differ greatly.

¶6 The question, however, is not what was determined, but whether the statute gives more than a single cause of action, for it is settled that a judgment upon a cause of action is res judicata, and hence bars the parties and their privies in a subsequent suit on the same cause of action, as to all matters which might have been, as well as those that actually were, determined. Hine v. Board of Com'rs of McClain County, 188 Okla. 260, 108 P. 2d 112; St. L. & S. F. Ry. Co. v. Thompson, 139 Okla. 142, 281 P. 565. The real question, therefore, is whether the administrator, in contemplation of law, brings the action for all of the rightful beneficiaries, whoever they may be, and whether named in the petition or not.

¶7 In deciding this question we must not confuse the cause of action and the person in whom it is vested with the beneficial interest in the recovery. By the great weight of authority statutes like ours creating a right to recover damages for wrongful death are held to contemplate but a single cause of action. 16 Am. Jur. 103; 25 C. J. S. 1148-1149; 8 R. C. L. 790; 17 C. J. 1250. This action is generally vested in the administrator if one exists (25 C. J. S. 1169-1174) and a recovery by him or the one entitled to sue is conclusive upon other persons, for the right given by the statute is then exhausted. Hartigan v. Southern Pac. R. Co., 86 Cal. 142, 24 P. 851; Freeman on Judgments (5th Ed.) § 618, p. 1273. In accordance with these general rules it is generally held that the person in whom the cause of action is vested may settle or compromise the claim, even without the consent of the beneficiaries, and the settlement so made may be pleaded in bar of a subsequent action. 25 C. J. S. 1146; 16 Am. Jur. 41-42, 107; 103 A.L.R. 445 note; Marm v. Minnesota Elec. Light & Power Co., 43 Fed. 2d 36. The courts likewise generally hold that a judgment for one entitled to sue bars a subsequent action by a posthumous child, even though the statutes declare that a child conceived, but not yet born, is to be deemed an existing...