WELCH, C. J.
For wrongful death of Bedford J. Pruitt, his surviving widow recovered judgment for herself and minor children against the Kansas, Oklahoma & Gulf Railway Company, and the defendant appealed.
Plaintiff maintained the action under 12 O. S. 1941 § 1054, as is authorized when no personal representative or ad
ministrator has been appointed. Such lack of appointment was alleged in the petition. Defendant made no specific attack on the right or capacity of plaintiff to maintain the action. Defendant’s entire pleadings were incorporated or included in an answer containing a general denial and a general plea of contributory negligence.
On appeal the defendant first questions the sufficiency of the showing as to plaintiff’s capacity to maintain the action. The petition fully explains plaintiff’s position, that is, stating that she is the surviving widow, that there is a minor child of the parties, that there is no administration on his estate nor any administrator appointed, and that therefore she sues for the benefit of herself and such child. Those facts being true, she is fully enabled to so maintain the action. 12 O. S. 1941 § 1054.
Defendant in no manner takes the position that plaintiff was not the surviving widow or that there was not a minor child of plaintiff and decedent, or that there was any administration of decedent’s estate or was any administrator appointed.
Defendant did demur generally to plaintiff’s evidence and did move generally for a directed verdict and in his motion for new trial relied generally on the statement that plaintiff’s verdict was not supported by sufficient evidence. But at no time in the trial court, even in motion for new trial, did defendant specifically object to plaintiff’s capacity to maintain the action as to either of the several points upon which such an objection might be made if there was the desire to make it.
In the petition in error and brief in this court defendant does not assert any lack of capacity in plaintiff to maintain the action, except alleged insufficiency of the evidence to properly show that no administrator of decedent had ever been appointed. Defendant in his brief does assert that the evidence was not sufficient to show that no administrator of the decedent’s estate was ever appointed.
As to plaintiff’s status and capacity to maintain the action and to show for whom she maintained it, she testified in substance as follows: That she was the surviving widow; that she had never been appointed administrator; that there were two minor children of the marriage of plaintiff and decedent (one born after her husband died); and that no administrator had been appointed for his estate. To the last answer-only the defendant objected and moved to strike, and therein defendant was sustained.
The defendant did not cross-examine plaintiff as to her nonappointment to administer upon her husband’s estate, and as has been pointed out, there is nothing to indicate defendant has ever contended that any administrator had been appointed in any county of the state. Of course, if such administrator had been appointed, then plaintiff would thereby have been deprived of the right to sue under the statute above cited.
Thus it is apparent that defendant’s contention on this point, if it has any force whatever as a defense or contention, is a purely technical one, as we have said in former opinions. Chicago, R. I. & P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362. If it is defendant’s position that in order to be approved as sufficient, the plaintiff’s evidence must negative such an appointment in every county of the state, we observe it could not have been so intended by the legislative enactment. The defendant does not here so contend, but in no other way could the plaintiff completely and positively prove the absence of any appointed administrator or . personal representative.
When this cause was heard in the trial court in motion for new trial the plaintiff presented proof by the court clerk and others that no administrator had been appointed in the county where decedent resided for several years prior to his death, being the same county where this accident occurred and where this cause was tried, and at that time offered proof generally that no administrator had been appointed anywhere else, but made no effort to make such
proof by the court clerk or the records of the other counties of the state. Defendant now asserts that such subsequent proof was not timely presented, and in any event was insufficient.
As to the propriety of hearing this proof on motion for new trial, it is not free from criticism. If it concerned an essential part of plaintiff’s cause of action, it could not properly be so presented at such time, but it was not really a matter necessarily going to the merits of the action, as this court stated in Chicago, R. I. & P. Ry. Company v. Brooks, supra. Since the matter went entirely to one of the points incident to plaintiff’s capacity to sue, and to nothing else, it may be that the trial court’s action would merit approval even in a case where, upon the main trial, no reference whatever had been made to the identical point in the evidence. It is not necessary that we go that far in this case, since in this case the identical point was referred to in the trial and there was some evidence presented on the identical point. Surely there was enough reference to the matter in the main trial to afford defendant an opportunity then to present any contrary contention of fact on the point. And whatever error there was in hearing the added proof on motion for new trial, the defendant was then present, represented by counsel, and might then have presented any contrary fact or contention on this point. Furthermore, before the trial commenced the defendant might have presented any actual contention of lack of capacity to sue in the plaintiff. State ex rel. Braly v. Ford, 189 Okla. 299, 116 P. 2d 988.
On this point defendant places complete reliance on the rule of Oklahoma Gas & Electric Co. v. Spiva, 183 Okla. 253, 80 P. 2d 941, and the cases therein cited. In those cases we did hold that a new trial must be granted where the trial record disclosed no evidence or reference to this point other than the bare statement in the petition that no administrator had been appointed. We now entertain serious doubt as to any necessity for such a rule, or any soundness therein. It may not be necessary, on account of some differences in the trial record, to now expressly overrule the Spiva Case and others of similar import. But if it be true that reversal must always result unless plaintiffs prove by positive evidence, and documentary or record evidence where possible, that no administrator has been appointed, then would it not likewise require reversal in each case where plaintiff failed to prove by documentary evidence that she was the wife and surviving widow? And by positive and documentary proof that the minor child had been born of plaintiff’s marriage to decedent?
We doubt not that if specific issue of fact were tendered and if defendant actually contended that plaintiff was not the wife, then the facts might be such as to require documentary proof of marriage, and likewise if defendant actually contended that an administrator had been appointed, documentary evidence might be the only way to conclusively prove the true facts.
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WELCH, C. J.
For wrongful death of Bedford J. Pruitt, his surviving widow recovered judgment for herself and minor children against the Kansas, Oklahoma & Gulf Railway Company, and the defendant appealed.
Plaintiff maintained the action under 12 O. S. 1941 § 1054, as is authorized when no personal representative or ad
ministrator has been appointed. Such lack of appointment was alleged in the petition. Defendant made no specific attack on the right or capacity of plaintiff to maintain the action. Defendant’s entire pleadings were incorporated or included in an answer containing a general denial and a general plea of contributory negligence.
On appeal the defendant first questions the sufficiency of the showing as to plaintiff’s capacity to maintain the action. The petition fully explains plaintiff’s position, that is, stating that she is the surviving widow, that there is a minor child of the parties, that there is no administration on his estate nor any administrator appointed, and that therefore she sues for the benefit of herself and such child. Those facts being true, she is fully enabled to so maintain the action. 12 O. S. 1941 § 1054.
Defendant in no manner takes the position that plaintiff was not the surviving widow or that there was not a minor child of plaintiff and decedent, or that there was any administration of decedent’s estate or was any administrator appointed.
Defendant did demur generally to plaintiff’s evidence and did move generally for a directed verdict and in his motion for new trial relied generally on the statement that plaintiff’s verdict was not supported by sufficient evidence. But at no time in the trial court, even in motion for new trial, did defendant specifically object to plaintiff’s capacity to maintain the action as to either of the several points upon which such an objection might be made if there was the desire to make it.
In the petition in error and brief in this court defendant does not assert any lack of capacity in plaintiff to maintain the action, except alleged insufficiency of the evidence to properly show that no administrator of decedent had ever been appointed. Defendant in his brief does assert that the evidence was not sufficient to show that no administrator of the decedent’s estate was ever appointed.
As to plaintiff’s status and capacity to maintain the action and to show for whom she maintained it, she testified in substance as follows: That she was the surviving widow; that she had never been appointed administrator; that there were two minor children of the marriage of plaintiff and decedent (one born after her husband died); and that no administrator had been appointed for his estate. To the last answer-only the defendant objected and moved to strike, and therein defendant was sustained.
The defendant did not cross-examine plaintiff as to her nonappointment to administer upon her husband’s estate, and as has been pointed out, there is nothing to indicate defendant has ever contended that any administrator had been appointed in any county of the state. Of course, if such administrator had been appointed, then plaintiff would thereby have been deprived of the right to sue under the statute above cited.
Thus it is apparent that defendant’s contention on this point, if it has any force whatever as a defense or contention, is a purely technical one, as we have said in former opinions. Chicago, R. I. & P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362. If it is defendant’s position that in order to be approved as sufficient, the plaintiff’s evidence must negative such an appointment in every county of the state, we observe it could not have been so intended by the legislative enactment. The defendant does not here so contend, but in no other way could the plaintiff completely and positively prove the absence of any appointed administrator or . personal representative.
When this cause was heard in the trial court in motion for new trial the plaintiff presented proof by the court clerk and others that no administrator had been appointed in the county where decedent resided for several years prior to his death, being the same county where this accident occurred and where this cause was tried, and at that time offered proof generally that no administrator had been appointed anywhere else, but made no effort to make such
proof by the court clerk or the records of the other counties of the state. Defendant now asserts that such subsequent proof was not timely presented, and in any event was insufficient.
As to the propriety of hearing this proof on motion for new trial, it is not free from criticism. If it concerned an essential part of plaintiff’s cause of action, it could not properly be so presented at such time, but it was not really a matter necessarily going to the merits of the action, as this court stated in Chicago, R. I. & P. Ry. Company v. Brooks, supra. Since the matter went entirely to one of the points incident to plaintiff’s capacity to sue, and to nothing else, it may be that the trial court’s action would merit approval even in a case where, upon the main trial, no reference whatever had been made to the identical point in the evidence. It is not necessary that we go that far in this case, since in this case the identical point was referred to in the trial and there was some evidence presented on the identical point. Surely there was enough reference to the matter in the main trial to afford defendant an opportunity then to present any contrary contention of fact on the point. And whatever error there was in hearing the added proof on motion for new trial, the defendant was then present, represented by counsel, and might then have presented any contrary fact or contention on this point. Furthermore, before the trial commenced the defendant might have presented any actual contention of lack of capacity to sue in the plaintiff. State ex rel. Braly v. Ford, 189 Okla. 299, 116 P. 2d 988.
On this point defendant places complete reliance on the rule of Oklahoma Gas & Electric Co. v. Spiva, 183 Okla. 253, 80 P. 2d 941, and the cases therein cited. In those cases we did hold that a new trial must be granted where the trial record disclosed no evidence or reference to this point other than the bare statement in the petition that no administrator had been appointed. We now entertain serious doubt as to any necessity for such a rule, or any soundness therein. It may not be necessary, on account of some differences in the trial record, to now expressly overrule the Spiva Case and others of similar import. But if it be true that reversal must always result unless plaintiffs prove by positive evidence, and documentary or record evidence where possible, that no administrator has been appointed, then would it not likewise require reversal in each case where plaintiff failed to prove by documentary evidence that she was the wife and surviving widow? And by positive and documentary proof that the minor child had been born of plaintiff’s marriage to decedent?
We doubt not that if specific issue of fact were tendered and if defendant actually contended that plaintiff was not the wife, then the facts might be such as to require documentary proof of marriage, and likewise if defendant actually contended that an administrator had been appointed, documentary evidence might be the only way to conclusively prove the true facts. But as to these matters, insofar as they deal purely with plaintiff’s capacity to sue, they ought to be presented, if seriously relied upon, somewhat apart from the trial on the merits of the cause of action to the jury. When there was no desire or effort to so present them, and there is some reference thereto in the trial record, and some evidence thereof, then we see no justice in the rule that the judgment must be vacated and the cause reversed merely because plaintiff did not exhaustively prove her marriage to deceased, absence of divorce, and absence of appointment of an administrator. And we feel such reasoning should be fully applied to this case as concerns the contention of insufficient showing of absence of appointment of administrator.
As to the rule of the Spiva Case and others of like import, we are content to say that justice requires of us that we decline to apply such rule here, emphasizing the facts again; that defendant nowhere contends that there has been any kind of administration of the
estate of this deceased, or the appointment of an administrator anywhere; and that in this case there was some proof of the absence of any appointment of administrator.
While we said in the Spiva Case, supra, as applied to the facts and record there shown, that we were not then ready to depart from the similar rule laid down in former cases, we are now, upon further consideration, thoroughly convinced that justice and sound reasoning requires that we depart from such rule as affects such a case as this one, and we are fully satisfied now to apply such better conclusion to this case.
Defendant asserts there is no sufficient proof of negligence or that the negligence charged was the proximate cause of the accident. As to that, we observe deceased was driving his truck over the railway crossing when plaintiffs train struck and killed him. There was conflicting evidence as to whether proper warning signal was given. The facts determined by the jury from the evidence formed the basis of the verdict. We should not reverse. St. Louis & S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 P. 491; Collins Cotton Co. v. Wooten-Burton Sales Co., 81 Okla. 67, 196 P. 681.
The defendant properly objected to two numbered instructions 9 and 17 given to the jury. They deal with the duty of such a defendant at road crossings and with the recovery in case finding is made for plaintiff. We have examined them in connection with the other instructions given and find no error.
The defendant predicates error on the court’s refusal to give a number of requested instruction's. We have examined them and find that the pertinent substance thereof is sufficiently covered in the instructions given, and that the instructions as a whole fairly submit the issues to the jury.
Defendant asserts the verdict for $16,-000 is excessive. The deceased was 29 years of age at his death and left surviving his widow of about the same age, and one child aged about six (another child was born about three months after the accident, which was after this suit was filed and more than a year prior to trial).
While it is true at the time of accident deceased was operating his truck in W. P. A. work for $88.00 per month, in view of his health and industry, shown at the trial, and his reasonable expectancy, we cannot say as a matter of law the allowance of this sum as recovery for the widow and children was excessive.
Finding no reversible error, the judgment is affirmed.
CORN, V. C. J., and OSBORN, DAVISON, and ARNOLD, JJ., concur. BAY-LESS and HURST, JJ., concurring specially, RILEY and GIBSON, JJ., dissenting.