PRESSLEY v. INCORPORATED TOWN OF SALLISAW

PRESSLEY v. INCORPORATED TOWN OF SALLISAW
1916 OK 75
154 P. 660
54 Okla. 747
Case Number: 6541
Decided: 01/18/1916
Supreme Court of Oklahoma

PRESSLEY et al.
v.
INCORPORATED TOWN OF SALLISAW et al.

Syllabus

¶0 1. APPEAL AND ERROR--Invited Error--Instruction. Where, at the request of a party to the cause, an erroneous prejudicial instruction is given by the trial court to the jury, the party at whose instance such instruction is given cannot, on appeal to this court, urge a reversal based upon such error.
2. CONTRACTS--Construction of Unambiguous Contract-- Question of Law--Independent Contractors. Whether or not a party to an unambiguous contract is an independent contractor is a question of law, to be determined by the court from an inspection of the contract, in the light of the surrounding circumstances.
3. APPEAL AND ERROR--Ground for Reversal- -Remarks of Court. In the presence of the jury in the trial of the cause, the court ex mero motu made the following statement, and did not afterwards withdraw the same, or caution the jury not to regard it: "Now, this contract is introduced here. I have heard Mr. Wheeler testify. He is the engineer for the town. I have heard this contract read, and the specifications, and all that, and it occurs to me at this time that the town of Sallisaw is not liable in this matter. Well, I haven't decided the question, but, as I say, if the town is liable, it is under this contract, and the view of the court at this time is that under that contract the city would not be liable. I will instruct the jury in the matter." Held, that the making of such statement in the presence of the jury was prejudicial error.
4. MUNICIPAL CORPORATIONS--Injury to Servant--Independent Contractor--Construction of Contract. The contract in evidence in this case carefully considered, and defendant Oklahoma Engineering Company held not to be an independent contractor.
5. DEATH--Recovery by "Children"-- Right--Amount. Under section 5281, Rev. Laws 1910, the right of recovery is not limited to children of a deceased father up to their majority, but extends to all children of deceased, regardless of their ages; but the recovery had, whether by minor or adult children, must be based upon the reasonable expectancy of pecuniary benefit, of which they were deprived by the death of their father.
6. MASTER AND SERVANT--Negligence of Vice Principal-- Liability of Principal. Where the relation of principal and vice principal exists, as in this case, the principal is liable in damages for the wrongful killing of a father, caused by the negligence of the vice principal.

Roy Frye and Joe Bailey Allen, for plaintiffs in error.
Curtis & Pitchford, Read & McDonough, and J. H. Jarman, for defendants in error.

COLLIER, C.

¶1 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 P. 755; Chas. T. Derr Const. Co. et al. v. Gelruth, 29 Okla. 538, 120 P. 253; Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okla. 358, 128 P. 705; Chicago, R. I. & P. Ry. Co. v. Bond, 47 Okla. 161, 148 P. 103; Muskogee Elec. Co. v. Hairel et al., 46 Okla. 409, 148 P. 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 S. Ct. 175, 33 L. Ed. 440; Bibb's, 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 P. 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 question 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 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 the 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 P. 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 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 P. 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. Dilworth [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. * * *" (Petrie 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 by the minor prior to his majority. * * *" (Butte Elec. Ry. Co. v. Jones, 164 F. 308, 90 C. C. A. 240, 18 L. R. A. [N. S.] 1205.)

¶2 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 P. 254. See, also, Shawnee Gas & Elec. Co. v. Motesenbocker, 41 Okla. 454, 138 P. 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 P. 678; Oklahoma Gas & Elec. Co. v. Lukert, 16 Okla. 397, 84 P. 1076; Western Union Tel. Co. v. McGill, 57 F. 699, 6 C. C. A. 521, 21 L.R.A. 818; Bartlett v. Chicago, R. I. & P. Ry. Co., 21 Okla. 415, 96 P. 468. As said Oklahoma Engineering Company, under the provisions of the contract entered into by it with the 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.

¶3 By the Court: It is so ordered.