Pressley v. Incorporated Town of Sallisaw

Opinion by COLLIER, C. (after stating the facts as above). The request of defendants, in their brief, that the judgment against defendant Oklahoma Engineering Company in the sum of $1,350 be affirmed, is an admission that the death of Kin Pressley was due to the negligence of said company, for which said company was liable. This admission leaves the following questions for our consideration: (1) Was the Oklahoma Engineering Company an independent contractor? (2) Did the court commit prejudicial error in the statement made in the presence of the jury in regard to the nonliability of the town of Sallisaw? (3) Were said minors, daughters of deceased, entitled to compensation on account of. the death of their.father for a period beyond the time of attaining their majority? That said Oklahoma Engineering Company was not an independent contractor, under the provisions of the contract hereinbefore recited, entered into with the town of Sallisaw, is not an open question in this jurisdiction. Missouri, K. & O. Ry. Co. v. Ferguson, 21 Okla. 266, 96 Pac. 755; Chas. T. Derr Const. Co. et al. v. Gelruth, 29 Okla. 538, 120 Pac. 253; Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okla. 358, 128 Pac. 705; Chicago, R. I. & *753 P. Ry. Co. v. Bond, 47 Okla. 161, 148 Pac. 103; Muskogee Elec. Co. v. Hairel et al., 46 Okla. 409, 148 Pac. 1005. See, also, New Orleans, M. & C. R. R. Co. v. Hanning, 15 Wall. 649, 21 L. Ed., 220; Singer Mfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440; Bibbs, Adm’r, v. N. & W. R. R. Co., 87 Va. 711, 14 S. E. 163; De Palma et al. v. Weinman et al., 15 N. M. 68, 103 Pac. 782, 24 L. R. A. (N. S.) 423; Conners v. Hennessey, 112 Mass. 96. Whether or not the Oklahoma Engineering Company was an independent contractor was a..question of law for the court to determine from the face of the contract, in the light of surrounding circumstances, and it was prejudicial error to submit this juestion as a question of fact to the jury. Chicago, R. I. & P. Ry. Co. v. Bond, supra; Muskogee Elec. Trac. Co. v. Hairel et al., supra. But the question of whether- or not the Oklahoma Engineering Company was an independent contractor was submitted to the jury as a question of fact, under instruction No. 1, requested by plaintiff.. Therefore the insistence of plaintiff that such action of the court was prejudicial error, or even error, has no basis upon which to stand. Certainly it is unnecessary to cite authorities to sustain the proposition that one cannot complain on appeal to this court of errors which he caused the trial court to commit, and to which no exception was, or could have been, saved. The statement of the court, in the presence of the jury, that the town of Sallisaw was not liable, was made entirely ex mero motu, so far as the record discloses, and was duly excepted to by plaintiffs. This statement was not withdrawn from the jury by the court, nor was the jury instructed to disregard such statement. That said *754 statement of the court made a lasting impression upon the jury, affecting their verdict, is shown by the inconsistent verdict returned by the jury, finding in favor of the town of Sallisaw and against the Oklahoma Engineering Company, notwithstanding the court, in its instruction No. 1, in effect instructed that, if thé Oklahoma Engineering Company was liable, the town of Sallisaw was also liable. Said statement in the presence of the jury, we think, was reversible- error. When remarks, made by a judge in the progress of a trial, are calculated to mislead the jury, or prejudice the party complaining, and the verdict of the jury conclusively shows that such remarks affected their verdict, the 'making of such remarks in the presence of the jury is reversible error. City of Guthrie v. Carey, 15 Okla. 276, 81 Pac. 431; Skelly v. Boland, 78 Ill. 438. The instruction of the court that said plaintiffs would not be entitled to any compensation on account of the death of their father, beyond the time of attaining their majority, does not correctly state the law. This action was brought under sections 5281 and 5282, Rev. Laws 1910, supra, and to hold the measure of damages as instructed by the court to be correct would be to read into said section 5281 the words “minor children,” which cannot be legally done. The action for damages for the wrongful killing of the father is given to the widow and children of the deceased, regardless of the ages of the children; and that adult children, as well as minor children, are embraced in the word “children,” used in said section, is emphasized by the provision in said statute that the damages are “to be distributed in the same manner as personal property”; and, also, by the provision in *755 said section that, if there be no widow or children, the right of recovery is given to the next of kin. In an action to recover damages for the wrongful killing of a mother, the right of a son of the deceased to recovery for any pecuniary loss sustained by reason of the death of his mother is not limited to the term of his minority, but also extends to and includes any such loss sustained by him after 'reaching his majority. Valente et al. v. Sierra Ry. Co., 158 Cal. 412, 111 Pac. 95. In Tuteur, Adm’r, v. Chicago & N. W. R. Co., 77 Wis. 505, 46 N. W. 897, it is held: “The fact that the children were all of age when their mother’s death was caused by negligence would not preclude a recovery for the loss of such pecuniary benefits as they had a reasonable expectation of securing from her additional accumulations.” “Under the statute giving children a right of action for negligence causing the death of their father, the right of action is not limited to minors. * * *” (Beaumont Trac. Co. v. Dillworth [Tex. Civ. App.] 94 S. W. 352.) “There is no sufficient legal reason for limiting the * * * damages [in such an action (to recover damages for a wrongful death)] to the minority of the children, if the jury are legally persuaded that they will continue after that age.” (Tilley, Adm’r, v. Hudson River R. Co., 29 N. Y. 252, 86 Am. Dec. 297.) “Our statute, which gives a right of action to the administrator of one negligently killed, for the benefit of the wife, husband, parent, and children, * * * does not exclude an action for the benefit of adult children. * * *” (Petri v. Columbia & Greenville R. Co., 29 S. C. 303, 7 S. E. 515.) “In an action on behalf of a minor to recover damages for the wrongful death of his mother; * * * the recovery is not limited to the pecuniary loss suffered *756 by the minor prior to his majority. * * *” (Butte Elec. Ry. Co. v. Jones, 164 Fed. 308, 90 C. C. A. 240, 18 L. R. A. [N. S.] 1205.) . Under a statute conferring a right of action on the surviving husband, wife, and children, the word “children;'’ as used in such statute, may include persons over •the age of 21 years. Galveston, H. & San Antonio Ry. Co. v. Kutac, 72 Tex. 643, 11 S. W. 127. - It is unnecessary to further cite authorities to show that the right of recovery in an action by children for the wrongful death of their father is not confined to pecuniary loss sustained during their minority, but may continue after such children reach their majority, as it is, in effect, directly so held by this court on rehearing, in Atchison, T. & S. F. Ry. Co. v. Eldridge, 41 Okla. 463, 139 Pac. 254. See, also, Shawnee Gas & Elec. Co. v. Motsenbocker, 41 Okla. 454, 138 Pac. 790. In an action, under said section 5281, supra, by the children of a deceased, the correct ‘ measure of damages is the pecuniary loss, regardless of the age of the children, suffered by them by reason of being deprived by the death of their father of an expectancy of pecuniary benefits, to be determined by the age, physical condition, occupation, earning capacity, habits, and the use made by deceased of his earnings. Big Jack Min. Co. v. Parkinson, 41 Okla. 125, 137 Pac. 678; Oklahoma Gas & Elec. Co. v. Lukert, 16 Okla. 397, 84 Pac. 1076; Western Union Tel. Co. v. McGill, 57 Fed. 699, 6 C. C. A. 521, 21 L. R. A. 818; Bartlett v. Chicago, R. I. & P. Ry. Co., 21 Okla. 415, 96 Pac. 468. As said Oklahoma Engineering Company, under the provisions of the contract entered into by it with the *757 town of Sallisaw, was not an independent contractor, but the servant and agent of said town, said town is liable for the negligent acts of said company as its agent, within the scope of its authority. Chas. T. Deer Const. Co. v. Gelruth, supra; Muskogee Elec. Trac. Co. v. Hairel et al., supra. This case should be reversed and remanded. By the Court: It is so ordered.