Adams v. Coleman

1963 OK 240, 386 P.2d 1004, 1963 Okla. LEXIS 525

• Court: Supreme Court of Oklahoma
• Decided: October 29, 1963
• Docket: 40057
• Status: Published

Opinions

IRWIN, Justice.

This appeal involves an action brought by Plaintiffs in Error to recover their proportionate share of the proceeds of a judgment rendered in an action for the wrongful death of their mother, Annie A. Coleman, Deceased, which was brought in the name of Otho Preilar Coleman, as administrator of the Estate of Annie A. Coleman, Deceased, and Otho Preilar Coleman, individually in his own right against Robert Allen Sewell. To better understand the issues presented in the instant action, a brief summary should be given concerning the facts surrounding the judgment rendered in the wrongful death action.

On June 2, 1960, Annie A. Coleman was killed in an automobile accident. The plaintiffs in error in this action are her surviving children and Otho Prellar Coleman, one of the defendants in error, is her surviving husband. On July IS, 1960, Letters of Administration were issued to Otho Prellar Coleman, as Administrator of the Estate of Annie A. Coleman, Deceased. On July 15, 1960, “Otho Prellar Coleman, as Administrator of the Estate of Annie A. Coleman, Deceased, and Otho Prellar Coleman, individually in his own right”, brought an action in damages against Robert Allen Sewell, for the wrongful death of Annie A. Coleman alleging three causes of action.

In the wrongful death action against Robert Allen Sewell, it was alleged in the first cause of action that plaintiff was the duly appointed and acting administrator of the Estate of Annie A. Coleman, Deceased, and “as such administrator, brings this action for the wrongful death of the said Annie A. Coleman, Deceased, for and on behalf of her next-of-kin and heirs at law. The petition then set forth the names of the plaintiffs in error as being the next-of-kin and heirs at law of Annie A. Coleman, Deceased. Insofar as pertinent to the present cause, it was further alleged that “the heirs and next of kin of decedent, Annie A. Coleman, by virtue of her wrongful death * * * have sustained damages in the total sum of Twenty Thousand ($20,000.00) Dollars”. It was further alleged that “The plaintiff, Otho Prellar Coleman, acting in his capacity as Administrator of the Estate of Annie A. Coleman, Deceased, and for and on behalf of the heirs and next-of-kin of said decedent, is entitled to judgment against the defendant, Robert Allen Sewell, for damages for the decedent’s wrongful death in the sum of Twenty Thousand ($20,000.00) Dollars.”

The second cause of action was for and on behalf of decedent’s estate for conscious pain and suffering prior to her death in the sum of $100.00. The third cause of action was for Otho Prellar Coleman, in his individual and personal capacity and as husband of the decedent in the sum of $25,-000.00.

On July 15, 1960, a judgment was rendered in the above cause, which, inter alia, contained the following:

“8. The Court further finds that the parties hereto, with the advise and approval of counsel, have entered into an agreement for the full and final settle- ■ ment of the several claims of the plaintiff herein asserted, which agreement the Court has fully examined and approved as fair, equitable and just; that under said settlement, it has been agreed by the parties that plaintiff shall recover and receive from defendant, for and on behalf of the heirs and next-of-kin of Annie A. Coleman, in full satisfaction of their claim for damages for the wrongffil death of said decedent as prayed for in plaintiff’s first cause of action the sum of Thirteen Thousand ($13,000.00) Dollars; that said parties have further agreed that plaintiff for and on behalf of the Estate of the deceased have and recover from defendant as damages for conscious pain and suffering of decedent prior to her death as prayed for in plaintiff’s second cause of action the sum of One Hundred ($100.00) Dollars; and that by said agreement of the parties the plaintiff, in his personal and individual capacity, have and recover from the defendant the sum of Four Thousand Nine Hundred (4,900.-00) Dollars in full satisfaction of his claim for damages for personal injuries, medical expenses, funeral bills, loss of services of the decedent, and property damage to his automobile, as prayed for in plaintiff’s third cause of action.

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the plaintiff be, and he is hereby awarded judgment against the defendant in the sum of Thirteen Thousand ($13,000.00) Dollars as damages for wrongful death of the decedent, Annie A. Coleman; and One Hundred ($100.00) Dollars as damages payable to the decedent’s estate for her conscious pain and suffering-; and Four Thousand Nine Hundred ($4,900.00) Dollars as damages for plaintiff’s personal injuries, medical expenses, funeral bills, loss of services of decedent and property damage to his automobile; or a total of Eighteen Thousand ($18,000.00) Dollars, and for the costs of this action.” (emphasis ours)

Otho Prellar Coleman was paid the full amount of the judgment but refused to pay any portion thereof to the (plaintiffs in error) children of the decedent except a portion of the $100.00 recovered in the second cause of action. They commenced this action to recover their proportionate share of the $13,000.00 allegedly paid and received for the use and benefit of the deceased’s heirs at law and next of kin pursuant to the judgment entered on July IS, 1960. Otho Prellar Coleman defended the action on the grounds that in the wrongful death action he was acting as Administrator of the estate of the decedent and received the $13,000.00 as trustee for the use and benefit of the heirs and next of kin of decedent who sustained a pecuniary loss by reason of decedent’s death and that plaintiffs had not suffered or sustained a pecuniary loss.

The trial court sustained a demurrer to plaintiffs’ evidence and dismissed the action. The trial court’s order in this connection contained, inter alia, this language, “ * * * both sides waive a jury trial and agree to try the issues to the Court. Thereupon the plaintiffs introduce evidence by witnesses duly sworn, and rest. The defendants demur to the evidence of the plaintiffs and offer no evidence of their own * * * the Court finds that the Demurrer of the Defendants to the evidence of the Plaintiffs should be sustained and the cause dismissed.”

The attorneys for all the litigants approved the trial court’s order sustaining the demurrer to the evidence and dismissing the action. Thereafter a motion for new trial was timely lodged and overruled. This appeal is lodged against the order overruling the motion for new trial. Defendants in error do not question the necessity for filing a motion for new trial, nor do they question the manner in which the appeal was lodged, nor this Court’s jurisdiction to determine the issues presented. The parties will be hereinafter referred to as they appeared in the trial court.

The original case wherein the money judgment was obtained for the wrongful death of the decedent was brought under Title 12 O.S.1961 § 1053, which provides:

“When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his personal representative if he is also deceased, if the former might have maintained an action had he lived, against the latter, or his representative, for an injury for the same act or omission. The action must be commenced within two years. The damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin; to be distributed in the same manner as personal property of the deceased.”

The theory relied upon by defendant is that plaintiffs are “adult and emancipated” children of the decedent; that the $13,-000.00 recovered in the original action is held by him as trustee of a trust under the exclusive jurisdiction of the district court, and distributable by said court only to the “heirs and next of kin” who suffered a pecuniary loss by reason of the wrongful death of decedent; that the plaintiffs did' not plead, nor attempt to prove, a pecuniary loss and the trial court did not err in sustaining the demurrer.

Plaintiffs contend that the original judgment, which became final, imports absolute verity and is conclusive evidence of its contents, and can not be contradicted, modified, enlarged, restricted, augmented or diminished, or be collaterally attacked.

It should he noted that this is not an action to recover damages for wrongful death, but an action to recover the proceeds of a> judgment rendered in a wrongful death action. Therefore, the issue in the instant action may be summarized as follows: “Where an administrator institutes an action in damages for wrongful death for the use and benefit of the heirs and next of kin of a decedent under Title 12 O.S.1961 § 1053, and recovers a judgment which is in all respects final, and said judgment does not make an apportionment to the individual heirs and next of kin of decedent, are the proceeds of said judgment distributed in the same manner as personal property of the deceased, or are said proceeds held in trust and apportioned to the heirs and next of kin in proportion to their respective pecuniary losses?”

If the proceeds of such judgment are distributable in “the same manner as personal property of the deceased”, then the judgment of the trial court must be reversed. On the other hand, if the proceeds are apportioned to the heirs and next of kin in proportion to their respective pecuniary losses, the judgment must be affirmed.

For the reasons hereinafter set forth, the case of Tackett v. Tackett, 174 Okl. 51, 50 P.2d 293, is controlling in the instant action. In that case the surviving widow brought an action to recover damages for the wrongful death of her husband, on behalf of herself as widow of decedent and on behalf of the next of kin who would be entitled to the distribution of the judgment. The money was paid into the hands of the Court Clerk. Although the action was brought by the widow, as administratrix, the minor daughter of decedent intervened and her attorneys took an active part which led to the settlement and judgment. There was no apportionment made in the judgment.

After payment of the money into the court, the minor brought an action against the widow asking that she be adjudged to be entitled to one-half interest in the judgment. The widow defended such action on the ground that the minor had sustained no pecuniary loss because the decedent had never contributed anything to her support. The trial court determined the minor was entitled to one-half of the proceeds which was her share under the laws of descent and distribution and that it was not necessary for the minor to prove a pecuniary loss. The widow appealed to this Court.

In affirming the judgment of the trial court we said that had the widow desired to contest the amount to be apportioned to those entitled thereto, she should have done so before rendition of the judgment for the wrongful death. We further stated that the widow “having failed to submit the matter of apportionment of damages until after judgment in a lump sum and without apportionment in the first action, the doctrine of res judicata must be applied, * * In that case we held:

“In a wrongful death action by an administrator for the use and benefit of the several persons for whose benefit the action survives, the interest of each beneficiary in the recovery must be measured by his or her individual pecuniary loss and the jury may make apportionment accordingly in their verdict. If the jury fail so to do, then distribution made to those entitled thereto as provided by the general statute of decent and distribution in the same manner as personal property of the deceased is approved.”

In reaching our conclusion in the Tackett case, we considered and discussed Gulf, Colorado & Santa Fe Ry. Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785; Okmulgee Gas Co. v. Kelly, 105 Okl. 189, 232 P. 428; Aetna Casualty & Surety Co. v. Young, 107 Okl. 151, 231 P. 261; and M. K. & T. Ry. Co. v. Canada, 130 Okl. 171, 265 P. 1045, 59 A.L.R. 743, which are cited by the defendant, which sustain the general proposition that “to maintain an action for wrongful death, the existence of beneficiaries named in the statute to whom the action survives and the pecuniary loss to them must be alleged and proved”.

The Tackett case was cited with approval in Capitol Steel & Iron Co. v. Fuller, 206 Okl. 638, 245 P.2d 1134, which involved a Workmen’s Compensation case. In referring to “the surviving spouse and children”, we said:

“ * * * These persons, although having a cause of action would not have a right of action unless they suffered a pecuniary loss by reason of the death, in other words, were dependents. They would have to be heirs at law and also dependents and, if the judgment amount was not apportioned by the trial court, they would have been ‘entitled thereto as provided by the general statute of descent and distribution in the same manner as personal property of the deceased’. Tackett v. Tackett, supra. * * * ”

See also Willis v. Capitol Well Servicing Co., Okl., 285 P.2d 388.

The facts in the case of Aetna Casualty & Surety Co. v. Young, 107 Okl. 151, 231 P. 261, are clearly distinguishable from the facts in the case at bar. In that case a judgment was recovered by the Administratrix, and the Court said:

“Neither the widow nor the children for whose benefit said money was recovered were parties to said action, nor were they referred to either by name or by the relationship which they bore to the deceased, in the pleadings or in the judgment itself, and it does not appear from the record or from the facts in the case that either the widow or the children had any actual knowledge of the-proceedings had in the suit or the recovery of the money at the time it was recovered.”

In the instant case the wrongful death action was brought by the Administrator for and on behalf of decedent’s next-of-kin and heirs at law; the next-of-kin and heirs at law were named and their relationship to decedent were specifically set forth in the pleadings and in the judgment; they had knowledge of the proceedings and judgment rendered; the Administrator, in addition to recovering judgment for and on behalf of the next-of-kin and heirs at law, recovered a judgment in his individual and personal capacity as the husband of the decedent.

Defendant cites Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, as sustaining his contention. In that case an administratrix sought to recover for the wrongful death of the decedent, and certain individuals were joined as the next of kin. By stipulation, the amount of damages was agreed upon and the amount deposited into court, and the trial court, after deducting expenses, apportioned three-fourths to the mother and the remainder to Ed Hurley, the father of the deceased. The father appealed to this Court and asserted that the amount recovered became a trust fund for the next of kin, and by reason of Title 12 O.S.1961 § 1053, it should have been divided equally. In that case we denied the father’s claim and said:

“We are committed to the rule that a judgment must determine the rights of all parties to the action and all issues raised by the pi lings. Foreman v. Riley, 88 Okl. 75, 211 P. 495; Wells v. Shriver, 81 Okl. 108, 197 P. 460. In the Tackett and Aetna cases, relied upon by defendant, the pleadings upon which the original judgments were rendered did not raise the issue of the apportionment of the recovery between the parties entitled thereto, and the judgments rendered were in all respects final. In the present case the issue of the apportionment of the fund was raised by the pleadings, and the order of June 3, 1940, did not purport to be and was not a final judgment, as it expressly left open and reserved for further consideration and decision the right of the respective next of kin to participate in the fund, and the amount each was entitled to receive.”

We therefore conclude that where an administrator institutes an action for the use and benefit of the heirs and next of kin of a decedent under Title 12 O.S.1961 § 1053, for the wrongful death of decedent and recovers a' judgment which has become final, and said judgment does not make an apportionment to the individual heirs and next of kin of the decedent, the proceeds of said judgment are distributable in the same manner as personal property of the decedent. We further conclude that when said judgment becomes final and an action is brought by an heir for his or her proportionate share of the proceeds of said judgment, said heir does not have to allege or prove a pecuniary loss.

In the instant action, the petition in the wrongful death case, specifically alleged that it was brought “for and on behalf of” decedent’s “next-of-kin and heirs at law”; the next of kin and heirs at law were named. The journal entry of judgment states “the plaintiff has full and exclusive authority to act for and on behalf of the heirs and next of kin of decedent and to prosecute the cause * * * ”; “that under said settlement, it has been agreed by the parties that plaintiff shall recover and receive from defendant, for and on behalf of the heirs and next of kin of” decedent for her wrongful death the sum of $13,000.00. The trial court then ordered that plaintiff be awarded $13,000.00 in the first cause of action; $100.00 payable to the estate for conscious pain and suffering; and $4,900.00 for plaintiff’s personal losses.

We can only conclude that had defendant wanted to submit and contest the apportionment of the damages recovered in the action for the wrongful death of decedent, he should have done so before the rendition of the judgment for the wrongful death of decedent. Having failed to submit the matter of apportionment until the judgment in a lump sum had been rendered without apportionment, the doctrine of res adjudicata must be applied.

We therefore hold that plaintiffs are entitled to an apportionment of the proceeds of the judgment rendered in the wrongful death action and the same is to be distributed to them “in the same manner as personal property of the deceased”.

The order overruling the motion for new trial is reversed and remanded with directions to reinstate the cause of action and proceed in accordance with the views herein expressed.

Judgment reversed and remanded with directions.

DAVISON, JOHNSON, JACKSON and BERRY, JJ., concur. ' BLACKBIRD, C. J., HALLEY, V. C. J., and WILLIAMS, J., dissent.