Richey v. Cherokee Laboratories, Inc.

1973 OK 127, 515 P.2d 1377

• Court: Supreme Court of Oklahoma
• Decided: October 30, 1973
• Docket: 44210, 44277
• Status: Published

Opinions

WILLIAMS, Vice Chief Justice.

In these two cases, plaintiffs appealed from respective trial court judgments in their favor in the amount of $25,000 each in wrongful death actions arising out of the same airplane crash near Republic, Missouri, on July 2, 1959. At the time of the crash, the decedents, officers or employees of defendant Cherokee Laboratories, Inc., were passengers in a plane owned by defendant which was then being flown on a business trip from Tulsa to Columbus, Indiana.

We previously (in 1965) have decided a case involving the same accident with which we herein are concerned. For reasons not stated in the record, trial of the cases from which the instant appeals arose was delayed until 1970.

The same conflict of laws question is presented in both appeals: whether, under the circumstances shown to exist, the Missouri wrongful death statutes, with their limitation of the amount recoverable as damages to $25,000, are applicable.

In both of these cases the trial court determined in advance of trial that the Missouri limitation was applicable. In Wood, the defendant stipulated that plaintiff’s damages exceeded $25,000, and the issue of liability only was submitted to the jury, which found for plaintiff. In Richey, one month after the jury trial in Wood, defendant filed a motion for summary judgment in plaintiff’s favor in the amount of $25,000, which was sustained.

The facts of the accident involved in each of the three cases are stated in the former opinion. See Cherokee Laboratories, Inc. v. Rogers, Okl., 398 P.2d 520. In that case a different Tulsa County trial judge determined that the $25,000 limitation on the amount recoverable was not applicable, under the evidence presented, and rendered judgment for plaintiff in a much larger amount. This Court held to the contrary on appeal and ordered the remitti-tur of an amount sufficient to reduce the judgment for plaintiff to $25,000. The parties in the appeals now before us agree that all of the evidence in Cherokee was also introduced in the cases now on appeal. Defendant argues that the evidence in all three cases was the same and that for that reason, the holding of this Court in Cherokee is determinative of the question presented in Wood and Richey.

Plaintiffs, while conceding that until fairly recent years the almost universally accepted rule in this situation was that the law of the place of the tort (“lex loci delicti”) controls, quite frankly devote most of their briefs to an appeal to this Court to change the Oklahoma conflicts of laws rule in that regard and send these cases back for trial under the Oklahoma wrongful death statutes on the issue of damages only, with no limitation upon the amount recoverable. Of course any attempt by our Legislature to effect the same change and make it applicable to these cases would plainly be unconstitutional. Nor, ordinarily, will retroactive effect be given a court opinion dealing with substantive rights. The rule of law announced in Cherokee governs here.

Plaintiffs argue that because of certain additional evidence in the cases now before us which was not presented in Cherokee, the holding of this Court in that case is not determinative of the question presented in the cases now before us.

The evidence to which they refer (either presented, stipulated to or offered and rejected) would, they argue, have justified a jury conclusion in these cases that at least one act of negligence which was, or contributed to, the proximate cause of the injuries, occurred in Oklahoma. The trial court was of the view that this alleged act of negligence (failure to switch from the main tanks to the auxiliary tanks in Oklahoma) was a mere condition and that other acts occurring later were the proximate cause of the accident in question. We agree.

In the case of Hunt v. Firestone Tire & Rubber Co., Okl. (1968) 448 P.2d 1018, this Court in the syllabus stated:

“2. The proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.”

See also City of Okmulgee v. Hemphill (1938) 183 Okl. 450, 83 P.2d 189, 190, cited with approval in O. G. & E., etc. v. Butler (1942) 190 Okl. 393, 124 P.2d 397, 399; and Meyer v. Moore, Okl. (1958) 329 P.2d 676, 681.

We are of the view that the factual distinction sought to be made between Cherokee and the cases now before us does not exist. There (Cherokee Laboratories, Inc. v. Rogers, Okl. (1965) 398 P.2d 520, supra) in the syllabus, we said:

“Absent evidence demonstrating occurrence of negligence in Oklahoma sufficient to amount to or substantially contributing to proximate cause of accident causing plaintiff’s decedent’s death, as result of an accident in the State of Missouri, the amount of plaintiff’s recovery in action in Oklahoma for wrongful death of husband under Missouri statutes creating cause of action for wrongful death and authorizing recovery of not to exceed $25,000.00 therefor, is limited by the amount fixed in such Missouri statutes.”

Since in Cherokee, the Missouri law was applied and since the principal factual distinction urged here was both found by the trial court and is determined by this Court to be in the nature of a mere condition and not a part of the proximate cause of the accident involved, we also apply that law here as all plaintiffs’ decedents were fatally injured in the same occurrence. Under the facts and circumstances of the present cases hereinabove recited, we are of the view that no act of negligence that amounted to a part of the proximate cause of the accident involved was shown to have occurred in Oklahoma and that therefore the judgments of the trial court should be upheld.

Affirmed.

DAVISON, C. J., and IRWIN, BERRY and BARNES, JJ., concur. HODGES, LAVENDER, SIMMS and DOOLIN, JJ., concur specially.