Alles v. Interstate Power Co. ( 1936 )

This action was commenced in the district court of Payne county by S.P. Alles, as plaintiff, against the Interstate Power Company and others, as defendants, to recover a money judgment for alleged libel. The trial court sustained demurrers of each of the defendants to the petition of plaintiff. Plaintiff elected to stand upon the petition, whereupon the trial court dismissed the cause. The plaintiff has appealed to this court, appearing herein as plaintiff in error. While the appeal was pending in this court the defendants filed a verified motion to dismiss the same alleging the death of the plaintiff and asserting that the action is such that it does not survive under the statutes of the state of Oklahoma. Copy of the motion to dismiss was served upon the attorney for the plaintiff. No response thereto has been filed, although this court has made an order calling for a response and the time for filing the same has expired.

An action for libel did not at common law survive the death of plaintiff. 17 R. C. L. 273, par. 123. The classes of action which survived at common law have been enlarged in this jurisdiction by statute. Section 568, O. S. 1931. This statute, however, did not include actions for libel. Neither did section 569, O. S. 1931, enlarge the class of actions which survived at common law to include libel and slander. That section relates to pending actions and is procedural in nature. It does not operate to make a pending action survive the death of the plaintiff, unless the cause of action upon which the action was based survived either at common law or by virtue of section 568, supra. See State ex rel. Mitchell v. City of Shawnee,167 Okla. 582, at 587, 31 P.2d 552.

Under the foregoing authority it appears that the defendants' motion to dismiss is well taken, and the same is sustained and this cause is dismissed.

OSBORN, V. C. J., and RILEY, BAYLESS, PHELPS, CORN, and GIBSON, JJ., concur. McNEILL, C. J., and WELCH, J., absent.