HURST, J.
This is an action for wrongful death. The questions presented are (1) whether a judgment obtained by an administrator for the benefit of the next of kin in an action where he alleged that deceased was single bars a subsequent action by a successor administrator for the benefit of one proven to be the widow, and (2) whether an attack on a judgment is barred by a former final order denying a motion to vacate the judgment.
Eli D. Harris was accidentally killed on August 26, 1935. Immediately thereafter M. L. Harris, his brother, applied for and obtained letters of administration upon his estate, giving no notice thereof to plaintiff. On October 30, 1935, plaintiff, claiming to be the widow of deceased because of an alleged common-law marriage, filed an instrument in the probate proceeding denominated “Petition of Heir.” In it she stated that she was the surviving spouse of Eli D. Harris, deceased, and prayed that she be decreed one-half of his estate. She did not object to the appointment of M. L. Harris as administrator, but prayed that only such funds “as may be necessary to pay the debts, if any, and the costs of administration”, be left in his hands. Her claim to the status of widow was resisted by the other heirs of deceased, including M. L. Harris in his individual capacity, and the matter was not heard by the county court until in October, 1936. At that time the court adjudged plaintiff to be the surviving
spouse of deceased. An attempted appeal was dismissed by the district court on January 27, 1937, and we affirmed the order of dismissal on January 25, 1938 (Love, Adm’r, v. Wilson, 181 Okla. 558, 75 P. 2d 876), and the order adjudging her to be the widow became final.
On April 16, 1936, while plaintiff’s claim was pending in the county court, M. L. Harris, as such administrator, filed an action in the district court of Lincoln county against defendants, Southwest Telephone Company and Town of Prague, to recover damages for the wrongful death of' Eli D. Harris, alleging that his death was caused by concurring negligence on the part of defendants. He further alleged that deceased, at the time of his death, was a single man and left no issue, but that his brothers and sisters and certain others were his sole next of kin. An agreed judgment for $1,250 was entered and paid on May 23, 1936.
On May 25, 1936, plaintiff filed a motion to vacate the judgment, alleging that she was the widow of deceased, that her claim had been on file and pending in the county court since October 30, 1935, and that M. L. Harris had obtained the judgment by fraud in that he concealed the existence of plaintiff’s claim from the court. Defendants filed responses to the motion and the matter was tried and taken under advisement on July 14, 1937. On July 19, 1937, the county court removed M. L. Harris as administrator of the estate of •Eli D. Harris and appointed E. C. Love special administrator in his stead. This was suggested to the district court on July 21, 1937, the day on which the court was to announce its decision in the matter of vacating the judgment, and the court thereupon substituted Love as plaintiff in the place of M. L. Harris. Love then moved to vacate the judgment of May 23, 1936, on the same grounds as those alleged by plaintiff, plaintiff withdrawing her motion. The motion was denied. Notice of appeal was given but no appeal was ever perfected and the order denying the motion to vacate the judgment on the ground of fraud became final. On August 26, 1937, Love, as special administrator, commenced the present suit for damages on behalf of plaintiff as the surviving spouse of deceased. He alleged the same acts of negligence on the part of defendants as were alleged in the former suit by M. L. Harris, administrator, but made no mention of that action. The title of the case appears in its present form because of the later substitution of plaintiff as administratrix of the estate. Defendants, by answer, pleaded the former judgment as res judicata and consequently as a complete bar to the present action. Plaintiff, by reply, alleged most of the facts above set out, and in addition asserted that the defendants as well as M. L. Harris had actual knowledge of her claim or were charged with notice thereof, and that the former action was a fraudulent scheme to procure the rendition of a judgment for a nominal sum on behalf of the next of kin, who sustained no loss, rather than on behalf of the widow, who had sustained loss of support.
Defendants’ motion for judgment on the pleadings was sustained, and plaintiff appeals.
1. Plaintiff contends that the former judgment is not res judicata of the present action because neither the parties nor the issues are the same. She asserts that there is no identity of parties because in the former action the administrator sued as trustee for the next of kin, while here the administratrix sues as trustee for the surviving spouse. She says that there is no identity of subject matter because in the former action the issue was the amount of damage sustained by the next of kin, while in the instant suit the issue is the damage sustained by the widow. It is apparent that the two amounts might differ greatly.
The question, however, is not what was determined, but whether the statute gives more than a single cause of action, for it is settled that a judgment
upon a cause of action is res judicata, and hence bars the parties and their privies in a subsequent suit on the same cause of action, as to all matters which might have been, as well as those that actually were, determined. Hine v. Board of Com’rs of McClain County, 188 Okla. 260, 108 P. 2d 112; St. L. & S. F. Ry. Co. v. Thompson, 139 Okla. 142, 281 P. 565. The real question, therefore, is whether the administrator, in contemplation of law, brings the action for all of the rightful beneficiaries, whoever they may be, and whether named in the petition or not.
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 the recovery. By the great weight of authority statutes like ours creating a right to recover damages for wrongful death are held to contemplate but a single cause of action. 16 Am. Jur. 103; 25 C. J. S. 1148-1149; 8 R. C. L. 790; 17 C. J. 1250. This action is generally vested in the administrator if one exists (25 C. J. S. 1169-1174) and a recovery by him or the one entitled to sue is conclusive upon other persons, for the right given by the statute is then exhausted. Hartigan v. Southern Pac. R. Co., 86 Cal. 142, 24 P. 851; Freeman on Judgments (5th Ed.) § 618, p. 1273. In accordance with these general rules it is generally held that the person in whom the cause of action is vested may settle or compromise the claim, even without the consent of the beneficiaries, and the settlement so made may be pleaded in bar of a subsequent action. 25 C. J. S. 1146; 16 Am. Jur. 41-42, 107; 103 A.L.R. 445 note; Marm v. Minnesota Elec. Light & Power Co., 43 Fed. 2d 36. The courts likewise generally hold that a judgment for one entitled to sue bars a subsequent action by a posthumous child, even though the statutes declare that a child conceived, but not yet born, is to be deemed an existing person. 16 Am. Jur. 103; 25 C. J. S. 1149; 17 C. J. 1251; Gulf and Ship Island R. Co. v. Bradley, 110 Miss. 152, 69 So. 666, Ann. Cas. 1918D, 554; Ann. Cas. 1918D. 556 note. L. R. A. 1916E, 130 note; Parmley v. Pleasant Valley Coal Co., 64 Utah, 125, 228 P. 557.
Free access — add to your briefcase to read the full text and ask questions with AI
HURST, J.
This is an action for wrongful death. The questions presented are (1) whether a judgment obtained by an administrator for the benefit of the next of kin in an action where he alleged that deceased was single bars a subsequent action by a successor administrator for the benefit of one proven to be the widow, and (2) whether an attack on a judgment is barred by a former final order denying a motion to vacate the judgment.
Eli D. Harris was accidentally killed on August 26, 1935. Immediately thereafter M. L. Harris, his brother, applied for and obtained letters of administration upon his estate, giving no notice thereof to plaintiff. On October 30, 1935, plaintiff, claiming to be the widow of deceased because of an alleged common-law marriage, filed an instrument in the probate proceeding denominated “Petition of Heir.” In it she stated that she was the surviving spouse of Eli D. Harris, deceased, and prayed that she be decreed one-half of his estate. She did not object to the appointment of M. L. Harris as administrator, but prayed that only such funds “as may be necessary to pay the debts, if any, and the costs of administration”, be left in his hands. Her claim to the status of widow was resisted by the other heirs of deceased, including M. L. Harris in his individual capacity, and the matter was not heard by the county court until in October, 1936. At that time the court adjudged plaintiff to be the surviving
spouse of deceased. An attempted appeal was dismissed by the district court on January 27, 1937, and we affirmed the order of dismissal on January 25, 1938 (Love, Adm’r, v. Wilson, 181 Okla. 558, 75 P. 2d 876), and the order adjudging her to be the widow became final.
On April 16, 1936, while plaintiff’s claim was pending in the county court, M. L. Harris, as such administrator, filed an action in the district court of Lincoln county against defendants, Southwest Telephone Company and Town of Prague, to recover damages for the wrongful death of' Eli D. Harris, alleging that his death was caused by concurring negligence on the part of defendants. He further alleged that deceased, at the time of his death, was a single man and left no issue, but that his brothers and sisters and certain others were his sole next of kin. An agreed judgment for $1,250 was entered and paid on May 23, 1936.
On May 25, 1936, plaintiff filed a motion to vacate the judgment, alleging that she was the widow of deceased, that her claim had been on file and pending in the county court since October 30, 1935, and that M. L. Harris had obtained the judgment by fraud in that he concealed the existence of plaintiff’s claim from the court. Defendants filed responses to the motion and the matter was tried and taken under advisement on July 14, 1937. On July 19, 1937, the county court removed M. L. Harris as administrator of the estate of •Eli D. Harris and appointed E. C. Love special administrator in his stead. This was suggested to the district court on July 21, 1937, the day on which the court was to announce its decision in the matter of vacating the judgment, and the court thereupon substituted Love as plaintiff in the place of M. L. Harris. Love then moved to vacate the judgment of May 23, 1936, on the same grounds as those alleged by plaintiff, plaintiff withdrawing her motion. The motion was denied. Notice of appeal was given but no appeal was ever perfected and the order denying the motion to vacate the judgment on the ground of fraud became final. On August 26, 1937, Love, as special administrator, commenced the present suit for damages on behalf of plaintiff as the surviving spouse of deceased. He alleged the same acts of negligence on the part of defendants as were alleged in the former suit by M. L. Harris, administrator, but made no mention of that action. The title of the case appears in its present form because of the later substitution of plaintiff as administratrix of the estate. Defendants, by answer, pleaded the former judgment as res judicata and consequently as a complete bar to the present action. Plaintiff, by reply, alleged most of the facts above set out, and in addition asserted that the defendants as well as M. L. Harris had actual knowledge of her claim or were charged with notice thereof, and that the former action was a fraudulent scheme to procure the rendition of a judgment for a nominal sum on behalf of the next of kin, who sustained no loss, rather than on behalf of the widow, who had sustained loss of support.
Defendants’ motion for judgment on the pleadings was sustained, and plaintiff appeals.
1. Plaintiff contends that the former judgment is not res judicata of the present action because neither the parties nor the issues are the same. She asserts that there is no identity of parties because in the former action the administrator sued as trustee for the next of kin, while here the administratrix sues as trustee for the surviving spouse. She says that there is no identity of subject matter because in the former action the issue was the amount of damage sustained by the next of kin, while in the instant suit the issue is the damage sustained by the widow. It is apparent that the two amounts might differ greatly.
The question, however, is not what was determined, but whether the statute gives more than a single cause of action, for it is settled that a judgment
upon a cause of action is res judicata, and hence bars the parties and their privies in a subsequent suit on the same cause of action, as to all matters which might have been, as well as those that actually were, determined. Hine v. Board of Com’rs of McClain County, 188 Okla. 260, 108 P. 2d 112; St. L. & S. F. Ry. Co. v. Thompson, 139 Okla. 142, 281 P. 565. The real question, therefore, is whether the administrator, in contemplation of law, brings the action for all of the rightful beneficiaries, whoever they may be, and whether named in the petition or not.
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 the recovery. By the great weight of authority statutes like ours creating a right to recover damages for wrongful death are held to contemplate but a single cause of action. 16 Am. Jur. 103; 25 C. J. S. 1148-1149; 8 R. C. L. 790; 17 C. J. 1250. This action is generally vested in the administrator if one exists (25 C. J. S. 1169-1174) and a recovery by him or the one entitled to sue is conclusive upon other persons, for the right given by the statute is then exhausted. Hartigan v. Southern Pac. R. Co., 86 Cal. 142, 24 P. 851; Freeman on Judgments (5th Ed.) § 618, p. 1273. In accordance with these general rules it is generally held that the person in whom the cause of action is vested may settle or compromise the claim, even without the consent of the beneficiaries, and the settlement so made may be pleaded in bar of a subsequent action. 25 C. J. S. 1146; 16 Am. Jur. 41-42, 107; 103 A.L.R. 445 note; Marm v. Minnesota Elec. Light & Power Co., 43 Fed. 2d 36. The courts likewise generally hold that a judgment for one entitled to sue bars a subsequent action by a posthumous child, even though the statutes declare that a child conceived, but not yet born, is to be deemed an existing person. 16 Am. Jur. 103; 25 C. J. S. 1149; 17 C. J. 1251; Gulf and Ship Island R. Co. v. Bradley, 110 Miss. 152, 69 So. 666, Ann. Cas. 1918D, 554; Ann. Cas. 1918D. 556 note. L. R. A. 1916E, 130 note; Parmley v. Pleasant Valley Coal Co., 64 Utah, 125, 228 P. 557. While an adjudication in favor of one entitled to sue is conclusive and bars a subsequent action against the defendants, the beneficial interest in the recovery belongs to the persons designated by the statute, and they may participate in the fund recovered in the first action even though not named in the pleadings. 16 Am. Jur. 175; Oyster v. Burlington Relief Dept., 65 Neb. 789, 91 N. W. 699, 59 L. R. A. 291.
Except for the case of L. E. Myers Co.. v. Ross, 161 Okla. 186, 17 P. 2d 395 (to be presently discussed), we have consistently followed the general rules above set out in the application of our wrongful death statutes, 12 O. S. 1941 §§ 1053, 1054. We have said that the statutes contemplate but a single cause son, 139 Okla. 142, 281 P. 565; Cowan v. A., T. & S. F. Ry. Co., 66 Okla. 273, 168 P. 1015; L.R.A. 1918 B, 1141; Shawnee G. & E. Co. v. Motsenbacker, 41 Okla. 454, 138 P. 790), and that a recovery by one suing in a representative capacity “is nevertheless a bar to any other action by the children of deceased not named in the complaint, and, if final, becomes res adjudicata as between these children and the defendants, but that they are not barred from sharing in the distribution upon proper proceedings if they so desire.” St. L.-S. F. Ry. Co. v. Thompson, above. See, also, Mann v. Minnesota E. L. & P. Co., above.
However, in the case of L. E. Myers Co. v. Ross, above, this court held that where one claiming to be the surviving spouse was appointed administratrix and recovered judgment for the. wrongful death of her alleged husband, such judgment did not bar a subsequent action by a successor administrator for the benefit of the true widow; that the former judgment was not res judicata of the second action because the subject matter was not the same; and that in the first case the right involved was the damage suffered by the alleged widow, and in the second the damage suffered by the true widow. The Okla
homa cases above cited were not mentioned in the opinion. It is apparent that the case is in conflict with the great weight of authority and with the other Oklahoma cases on the subject. Proper weight was not given to the fact that the right to recover for wrongful death is given only by the statute, and that the action must stand or fall by the terms thereof. Since the statute contemplates but one cause of action vested in a single person, a recovery by that person exhausts the remedy given, and it makes no difference whether the damage to all of the beneficiaries was determined or not. The case of L. E. Myers Co. v. Ross, above, is therefore overruled. We are not unmindful of the fact that in some instances the amount of recovery will be substantially less because the damage sustained by the omitted beneficiaries will not be in evidence. But the Legislature probably thought that the desirability of avoiding divided authority over the cause of action and of encouraging settlements by protecting defendants willing to compromise outweighed such considerations. The opposite view, with which we do not agree, is followed in the case of Atlantic Greyhound Lines, Inc., v. Keesee, 111 F. 2d 657.
The question of what rights plaintiff may have against M. L. Harris and his bondsmen or the next of kin, to whom the réeovery has been distributed, are not presented and we intimate no opinion thereon. We decide only that so long as the former judgment stands it is res judicata of the cause of action and bars further recovery from the defendant lor the same wrongful death.
2. The next question presented is whether the pleadings disclose that the judgment was obtained by extrinsic fraud, thus entitling plaintiff to relief therefrom in equity.
It will be recalled that plaintiff’s predecessor, E. C. Love, filed a motion to vacate the judgment obtained by Harris upon the ground of fraud; that the order overruling the motion became final; and that defendants, by their answer, pleaded such order as a final adjudication of that issue. Plaintiff, by reply, denied all the allegations of the answer not specifically admitted, and, although she admitted the existence of the judgment, she did not mention the motion to vacate it nor the final order overruling such motion. While the pleadings thus technically deny the existence of any proceedings to vacate the judgment, they were, nevertheless, a proper subject of judicial notice, since a trial court in such a case may take judicial notice of proceedings formerly pending before it. Haffner v. Commerce Trust Co., 188 Okla. 532, 111 P. 2d 479; Corliss v. Davidson & Case Lumber Co., 183 Okla. 618, 84 P. 2d 7; Schneider v. Decker, 144 Okla. 213, 291 P. 80. All of such proceedings are incorporated in the case-made and are before us. Although worded differently, the allegations of fraud contained in the motion to vacate the judgment and the reply are substantially identical except that in the motion to vacate it was alleged merely that defendants were charged with notice of plaintiff’s claim, while in the reply it was alleged that they actively participated in the fraud.
In the case of Brett v. Fielder, 136 Okla. 222, 277 P. 216, we held that a motion to vacate a judgment, if allowed to become final, is res judicata “as to all questions which were put in issue by said motion and as to all material questions which might properly have been put in issue.”
It follows that the question of fraud and collusion having been finally adjudicated ' in a proceeding within the judicial knowledge of the court, plaintiff’s allegations in regard thereto contrary to such adjudication must be disregarded.
Plaintiff contends, however, that the final order is not conclusive as to her, because her motion was withdrawn, and only the motion of E. C. Love, special administrator, was overruled. But the bar of a judgment extends not only to the parties thereto, but to their privies as well. 34 C. J. 525; 31 Am. Jur. 179.
We have defined the term “privity” as a “mutual or sucessive relationship to the same rights or property.” Arnold v. Joines, 50 Okla. 4, 150 P. 130. Since plaintiff brings the present action as administratrix, she is in privity with E. C. Love, her predecessor in office, and is concluded by the judgment against him. 50 C. J. 404; 30 Am. Jur. 957; Schendel v. Chicago, M. & St. P. Ry. Co., 168 Minn. 152, 210 N. W. 70; Succession of Spyker (La. App.) 159 So. 347. Plaintiff is also in privity with Love because his motion to vacate the judgment was made solely for her benefit, and a beneficiary is concluded by a judgment against one properly suing on his or her behalf in a representative capacity. St. L. & S. F. Ry. Co. v. Stuckwish, 137 Okla. 251, 279 P. 683; Chicago, R. I. & P. Co. v. Schendel, 270 U. S. 611, 46 S. Ct. 420, 70 L. Ed. 757, 53 A. L. R. 1265.
3. Plaintiff finally contends that because no notice was given her and because she had a prior right to the appointment, the order granting letters of administration to M. L. Harris was void and he had no authority to maintain the action in the district court.
This is simply an additional ground for the vacation of the judgment which might have been urged in the motion setting up the ground of fraud. Under the authorities above cited, this matter was merged in the final order denying the motion to vacate and may not be re-examined here.
Furthermore, the proceedings leading up to the appointment of Harris as such administrator are not in the record before us, and plaintiff does not argue that the order of appointment is void on the face of the record so as to be subject to collateral attack. See 58 O. S. 1941 § 232; Green v. Yearger, 114 Okla. 283, 251 P. 1008; King v. Salyer, 172 Okla. 130, 44 P. 2d 11.
Affirmed.
CORN, C. J., GIBSON, V. C. J., and OSBORN, BAYLESS, DAVISON, and ARNOLD, JJ., concur. RILEY and WELCH, JJ., dissent.’