Chicago, R. I. & P. Ry. Co. v. Brooks , 57 Okla. 163 ( 1915 )

Opinion by

WILSON, C.

The defendant in error Florence M. Brooks, as plaintiff, sued the plaintiff in error and others in the superior court of Oklahoma county to recover damages for the death of her husband, Roy Brooks, who she alleged was killed at Elk City, Okla., through the negligence of the defendants. Among the other, allegations of her petition the plaintiff alleged that Roy Brooks at the time of his death was a citizen of the State of Oklahoma, and that he left surviving him the plaintiff and one child. At the trial of the case and after all the evidence had been offered, and after both parties had rested, the defendant railway company moved the court to direct a verdict for the railway company and against the plaintiff for the alleged reason that the evidence failed to establish a cause of action against said defendant and in favor of the plaintiff. This motion was overruled, and the ruling of the court thereon excepted to by the defendant. The court then gave general - instructions to the jury, which, after retiring, returned a verdict for the plaintiff and against the defendant railway company, upon which judgment was rendered. Within due time thereafter the railway company filed a motion for a new trial, alleging, among other things, as grounds therefor, that the verdict was not sustained by sufficient evidence, and that the court erred in refusing to direct a verdict in favor of the defendant company. The motion for a new trial was overruled and exceptions to the ruling taken and allowed, and the case was brought here - on appeal by the railway company; it assigning as error the facts that the court entered judgment against the defendant company, and that it denied the defendant company a•new' trial. Plaintiff’s petition alleged that no personal representative had been appointed to administer the estate of Roy Brooks, and at the trial of the case there was a total failure of proof of that alleged fact.

Sections 5945 and 5946, Comp. Laws 1909, they being sections 5281 and 5282, Rev. Laws 1910, provide:

“5945. When the death of one is caused by the wrongful act or omission of another, the personal representatives 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.

“5946. That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 5945 of this article, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in * * * section 5945 may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”

The right to recover damages for a death caused by the wrongful act or omission of another is a purely statutory right, the benefit of which can be claimed only by the person to whom the statute creating' the right gives it, and only under the conditions provided by the statute. The statute of the state in force at the time of the death of Roy Brooks and at the time of the commencement of this action, being the statute by virtue of which the plaintiff claims her right to recover damages for the death of her husband, provides primarily that such a right < can be invoked by the personal representative of the persop killed, and, if there is a personal representative of the deceased person in the state at the time of the commencement of an action, such personal representative, and no other person, can maintain the action. If, however, there is no personal representative at the time the action is commenced, then, if there be a widow, she has the right to maintain the action, but, her right to maintain such an action being by the statute postponed to the right to do so of any personal representative there may be, and being conditioned on the fact that there is no personal representative, the fact of the nonexistence of a personal representative of the deceased person becomes a condition precedent to the right of the widow to commence the action, and must be alleged and proved by her. The fact that there is not a personal representative is a condition which enters into and becomes a part of the very existence of the widow’s right to sue. If there is a personal representative of the deceased, the widow has no right of action.

The statute which is controlling in this case was taken by Oklahoma from the statutes of Kansas, and the question, under discussion seems to have been finally settled, both in Kansas and by the Supreme Court of our own state, in a very clear and decisive opinion by Watts, C., in the case of Frederick Cotton Oil & Mfg. Co. v. Clay, 50 Okla. 123, 150 Pac. 451, in which the Kansas cases are collated.

The plaintiff having alleged in her petition that no personal representative of the estate of Roy Brooks had been appointed, and having offered no proof at the trial of the case in support of that allegation, the court committed error by its action in refusing to direct a verdict for the defendant, the Chicago, Rock Island & Pacific Railway Company; for, so far as the proof in the ease is concerned, there may have been a personal representative of the estate of Roy Brooks at the time the case was commenced, and in that event the plaintiff would not have had a cause of action, and for that reason the judgment should be reversed, and the cause sent to the-district court of Oklahoma county for a new trial, the superior court of that county having been abolished by an act of the Legislature, and it is so recommended.