Wilson-Harris, Adm'x v. Southwest Telephone Co.

Eli D. Harris departed this life August 26, 1935, by wrongful death, and left surviving him his widow, Leanna Wilson-Harris. Thereafter, M.L. Harris, a brother of deceased, without notice to the surviving widow, but by pleading representing her nonexistence, wrongfully made application and was appointed administrator of deceased's estate. According to plan, this administrator instituted an action for the wrongful death of decedent and, as the result of agreements with defendants, obtained a judgment in a sum adequate only to compensate for damages to the next of kin as a result of the wrongful death. M.L. Harris was removed as administrator and the widow, as successor, instituted the present action, alleged that deceased died without issue, leaving surviving as his only dependent, his widow, Leanna Wilson-Harris.

The rule heretofore prevailing in this jurisdiction is that an action such as the case at bar is not precluded by a former judgment rendered in an administrative capacity where benefits are not extended to the surviving widow. L. E. Myers Co. et al. v. Ross, Adm'r, 161 Okla. 186, 17 P.2d 395. The principle indulged in that decision was:

"The identities required for an estoppel by res adjudicata are lacking."

In the former suit now pleaded in bar the widow was not a party, nor was she represented, although by statute the cause of action was created for her benefit and it was specifically provided by statute that:

". . . The damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin; . . ." 12 O. S. 1941 § 1053.

By virtue of the statute creating the cause of action, investing the power to sue in a personal representative, it is: made plain by use of the disjunctive "or" that the de facto administrator was: bound to represent either the surviving spouse or the next of kin. It is equally plain from the pleadings filed in the original action that M.L. Harris as administrator elected to represent the next of kin, to the exclusion of the widow. There were no children. Likewise, it is admitted that substantial damages inured to the widow's interests rather than the nominal amount of damages recovered under the first agreed judgment for those who constituted the next of kin.

Requisites of the plea of res adjudicata are four in number, and they extend to (1) the identity of the thing sued for; (2) the cause of action; (3) persons to the action; and (4) equality of the person for and against whom claim is made. Davis v. Brown, 94 U.S. 423, 24 L. Ed. 204.

It is manifest in the case at bar that the thing sued for, to wit, money damages, would not be identical in amount with that obtained in the former suit. The damage varies according to identity of the person who is beneficiary and the fluctuation in amount has a direct relation with the state of dependency upon the deceased person. It naturally follows that the equality of the person for whom claim for wrongful death is made in the two causes of action is not identical.

Res adjudicata is based upon the maxims that one should not be twice vexed for the same cause, and that for the public good there should be an end to litigation. Wisconsin v. Torinus,28 Minn. 175, 9 N.W. 725. But a maxim of equal importance in the jurisprudence of Qklahoma is that no man shall suffer wrong. Moreover, not every judgment obtained by a personal representative is a bar to a subsequent action. Myers v. Ross, supra; Spokane Inland Empire Railroad Co. v. Whitley,237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060; Atlantic Greyhound Lines, Inc., v. Keesee, 111 F.2d 657.

Where a mother's cause of action for wrongful death is not within the scope of a representative action, which was brought without her sanction, she cannot, under the Idaho law, be barred by a former judgment rendered. Spokane Inland Empire Railroad Co. v. Whitley, supra.

Substance, not form, governs "in determining whether widow was concluded by judgment in death action brought under Virginia statute . . . by administrator." Atlantic Greyhound Lines, Inc., v. Keesee, supra.

The rule of justice elsewhere prevails that:

"The rights of widow seeking recovery . . . for wrongful death of husband are her own and not those of deceased husband, and hence she or someone suing in her behalf is an indispensable party to a suit which is to determine her rights." Atlantic Greyhound Lines, Inc., v. Keesee, supra.

In the case last cited, as here, the defendants "fought for the privilege" to pay the judgment first rendered, but it was held not conclusive as to the widow's right.

According to the Supreme Court of the United States (Chicago, Rock Island Pacific Ry. Co. v. Schendel, Adm'r,270 U.S. 611, 46 S. Ct. 420), "The question of identity of parties . . . must be determined as a matter of substance and not of mere form."

Consequently, it matters not whether the former judgment, wherein damages were limited to that sustained by the next of kin, be vacated, because that judgment is in no way compensatory of the widow's damage.

In Davis v. Brown, supra, it was held by the Supreme Court of the United States, in an opinion prepared by Mr. Justice Field, that when a judgment in one action is offered in evidence in a subsequent action between the same parties, upon a different demand, it operates as an estoppel only upon matters actually at issue and determined in the original action, and that such matter, when not disclosed by the pleadings, must be shown by extrinsic evidence. Consequently, it is plain that the issue in the first judgment agreed upon was whether the deceased suffered wrongful death by acts of defendant and, if so, how much damage was suffered by the next of kin; whereas, the issue in the case at bar does not concern damage to the next of kin, but damage to the surviving widow. The majority opinion is in error in holding that the first judgment is conclusive as to all things that might have been litigated in the first judgment because under the pleading there filed damages only were sought for the next of kin, and under the issues there joined the existence of the widow and her right of recovery were excluded.

The majority opinion cautions the writer and the concurees "That 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 recovery," and promptly proceeds to do that very thing. Without doubt the cause of action is vested in the widow. She may bring the action in her own name. The administrator acts solely in a representative capacity and as trustee of those he purports to represent. At common law there was no right of recovery for wrongful death and the right never existed in England until the passage of Lord Campbell's Act.

"The statutes almost universally provide that the action authorized shall be for the exclusive benefit of designated persons, members of the family or next of kin of decedent." 17 C. J. 1210.

The statutory beneficiary in this case is neither the next of kin nor the estate nor the administrator, but the surviving wife. Aetna Casualty Surety Co. v. Young, 107 Okla. 151,231 P. 261; Frederick Cotton Oil Co. v. Clay et al., 50 Okla. 123,150 P. 451.

". . . The executor or administrator, as such, has no beneficial interest in the recovery, but is a mere statutory trustee for the persons beneficially entitled under the statute; the recovery is not assets of the estate." 17 C. J. 1210.

". . . As the action is wholly statutory, where the beneficiaries are named, the action cannot be maintained by or for the benefit of any one not within the statutory designation." Idem.

From the beginning, it clearly appears that the administrator has no right of recovery at all, since a recovery never goes into the coffers of an estate, unless the case is bottomed upon the claim of a rightful beneficiary.

"There is no privity where plaintiff is suing in different rights, as where an administrator is suing in one action for the benefit of those interested in the estate, and in the other for the benefit of the next of kin." 34 C. J. 1012; Alfrey v. Colbert et al., 44 Okla. 246, 144 P. 179.

It is admitted in the case at bar that the action terminating in the agreed judgment now urged to be conclusive was bottomed on the wrongful claim of a mere purported beneficiary. Defendants did not see fit to contest the issue of the real party in interest, but for reasons best known to them hurriedly paid the judgment. Upon the simple equation presented, the joint tort-feasors may as well have paid to John Doe the damages accrued to Richard Roe as a result of their wrongful acts. The widow occupied no antagonistic relations with defendants in the former suit. By her claim she has vexed the defendants but once. 34 C. J. 996.

The question of who is the real party in interest in an action brought by an administrator for and on behalf of some named beneficiaries under the statute has heretofore been a justiciable issue within this jurisdiction. St. Louis-S. F. Ry. Co. v. Stuckwish, Adm'x, 137 Okla. 251, 279 P. 683. In the cited case, Stuckwish suffered wrongful death and, as in the case at bar, two actions were brought to recover damages, one by the personal representative and the other in a representative action for the benefit of the widow, as in the case at bar, and three minor children. That case turned upon the plea of res adjudicata, as does the case at bar. However, in the cited case the beneficiaries were the same in both suits. Our court then deemed it a duty to ascertain whether or not the parties in interest were the same in both actions. In the 4th paragraph of the syllabus we said:

"The question of identity of parties in two actions is of substance; parties nominally the same may be in legal effect different, and parties nominally different may be in legal effect the same. They are the same where, in the first case, an action for damages for the accidental death of an employee of a railroad company was brought by the surviving wife, individually, and as the personal representative of her three children, for the benefit of all, and in the second case, brought by the personal representative of the estate of which the parties in the first case are the beneficiaries and for whose benefit the second action is brought."

The point of law identical with the issue now presented was that the court in considering the plea of res adjudicata should and would consider and determine whether the real party in interest was the same in the two suits. If they are, the plea of res adjudicata is good. Otherwise, as a part of due process of law, the real party in interest is entitled to a day in court. That rule of law prevailed within this jurisdiction as long ago as the decision in Missouri, K. T. Ry. Co. v. Lenahan, 39 Okla. 283, 135 P. 383. It is a substantial part of our jurisprudence. The contrary rule now promulgated will deprive women and children of the right given by statute to prosecute claims to compensate them for wrongful death. Without a particular examination, I cannot fancy the establishment of such a rule within this state, contrary to and destructive of a long-existing policy admittedly just, that would cause Leanna Wilson-Harris, or any other widow, to stand at the new-made grave of her stricken spouse without right or remedy for wrongs inflicted upon her.

For these reasons, I respectfully dissent.