THOMAS v. CUMBERLAND OPERATING CO.

THOMAS v. CUMBERLAND OPERATING CO.
1977 OK 164
569 P.2d 974
Decided: 09/20/1977
Supreme Court of Oklahoma

EUGENE THOMAS, INDIVIDUALLY AND AS THE FATHER OF JOHN L. THOMAS, DECEASED, AND AS ADMINISTRATOR OF THE ESTATE OF JOHN L. THOMAS, DECEASED, APPELLANT,
v.
CUMBERLAND OPERATING COMPANY, AN OKLAHOMA CORPORATION, APPELLEE.

Appeal from the District Court of Okmulgee County; Kirk Woodliff, Judge.

¶0 Certiorari granted pursuant to 12 O.S. 1971 § 952 (b)(3). Appellant seeks to apply 12 O.S. 1975 Supp. § 1055 as the measure of damages in a wrongful death action of a minor. The trial court in granting a motion for partial summary judgment held the statute was not applicable because it did not become effective until after the date of the accident which resulted in the death of the minor. AFFIRMED.

Bailey, Romine & George by Terry Lee George, Okmulgee, for appellant.

Knight & Wagner by Alfred B. Knight, Stephen C. Wilkerson, Tulsa, for appellee.

HODGES, Chief Justice.

[569 P.2d 975]

¶1 The certified order which affects a substantial part of the merits of this controversy is the granting of a partial summary judgment. Interlocutory appeal will materially advance the ultimate determination of this action, and we grant certiorari. The question presented on appeal is the applicable wrongful death statute as it relates to damages for the death of a minor, in an action which arose prior to the effective date of 12 O.S. 1975 Supp. § 1055 .

¶2 An action for wrongful death was filed by Eugene Thomas, individually, and as administrator of the estate of John L. Thomas, deceased, appellant, after his son was fatally injured on May 18, 1975, when he fell from an oil well pump jack on which he was riding. Title 12 O.S. 1975 Supp. § 1055 became effective October 1, 1975. This action was filed October 7, 1975, seeking damages recoverable under § 1055. The appellee, Cumberland Operating Company, an Oklahoma corporation, filed a motion for partial summary judgment, alleging that § 1055 was not applicable because it was not effective until after the accident. The application of 12 O.S. 1971 § 1053 was urged.

[569 P.2d 976]

¶3 The trial court ruled that 12 O.S. 1975 Supp. § 1055 was inapplicable and certified the question pursuant to 12 O.S. 1971 § 952 (b)(3).

¶4 As a general rule statutes are construed to operate prospectively,

¶5 It is asserted by appellant that the statute is remedial and procedural because no new cause of action is created nor is there a change in the monetary amounts which may be recovered as damages.

¶6 Wrongful death actions were unknown at common law, and any right of action surviving the decedent exists by virtue of statutory enactment. The damages are limited to the pecuniary benefits lost, through the death, by those specified in the statute.

¶7 In Regan v. Davis, 290 Pa. 167, 138 A. 751, 54 A.L.R. 1073 (1927) the Legislature enacted a statute which allowed recovery for medical and funeral expenses in addition to damages previously recoverable in wrongful death actions. The Pennsylvania Supreme Court held that the statute afforded new substantive rights, and construed it to operate prospectively because the right of action had accrued when the statute was enacted.

[569 P.2d 977]

¶8 The Michigan Supreme Court in Straub v. Andrews, 295 Mich. 129, 294 N.W. 121, 122 (1940) considered the effect of a wrongful death statute permitting recovery of new damages which became effective a few days after decedent's death. The statute § 27.711 provided:

"All actions for such death or injuries resulting in death shall hereafter be brought only under this act."

The act in question did not become effective until after the institution of the action. The Court held that the legislative intent was that the statute should apply only to actions commenced after the effective date. There was no statement in the statute indicating that a contrary result was intended, nor is there any statement in § 1055 indicating a contrary intention. We concur with the opinion in Straub v. Andrews where the Court held where by its terms a statute is to apply "hereafter" it is prospective only in operation.

¶9 In previous cases decided under 12 O.S. 1971 § 1053 the Oklahoma Supreme Court determined the measure of parents' damages for their minor child's death to be limited to pecuniary loss.

¶10 Under the great weight of authority, the measure and elements of damages are matters pertaining to the substance of the right and not to the remedy.

¶11 AFFIRMED.

¶12 HODGES, C.J., LAVENDER, V.C.J., and DAVISON, WILLIAMS, IRWIN, BERRY, BARNES and SIMMS, JJ., concur.

Footnotes:

1 It is provided by 12 O.S. 1975 Supp. § 1055 :

In all actions hereinafter brought to recover damages for the death of an unmarried, unemancipated minor child, the damages recoverable shall include medical and burial expense, loss of anticipated services and support, loss of companionship and love of the child, destruction of parent-child relationship and loss of monies expended by parents or guardian in support, maintenance and education of such minor child, in such amount as, under all circumstances of the case, may be just.

2 It is provided by 12 O.S. 1971 § 1053 :

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his personal representative if he is also deceased, if the former might have maintained an action had he lived, against the latter, or his representative, for an injury for the same act or omission. The action must be commenced within two years. The damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin; to be distributed in the same manner as personal property of the deceased.

3 Franklin v. Sovereign Camp, W.O.W., 145 Okl. 159, 291 P. 513 (1930).

4 Benson v. Blair, 515 P.2d 1363 (Okl. 1973).

5 Lavieri v. Ulysses, 149 Conn. 396, 180 A.2d 632, 98 A.L.R.2d 1096 (1964).

6 Phillips v. H.A. Marr Grocery Co., 295 P.2d 765, 768 (Okl. 1956).

7 Haws v. Luethje, 503 P.2d 871 (Okl. 1972); Hale v. Hale, 426 P.2d 681 (Okl. 1972).

8 Unsatisfied Claim & Judgment Fund Bd. v. Bowman, 249 Md. 705, 241 A.2d 714, 717 (1968); Monson v. Nelson, 145 N.W.2d 892 (N.D. 1966). See also Annot., "Retroactive effect of statute which imposes, removes or changes a monetary limitation of recovery for personal injury or death." 98 A.L.R.2d 1105 (1964).

9 Bradley v. Knutson, 62 Wis.2d 432, 215 N.W.2d 369, 371 (1974).

Several jurisdictions have refused to apply wrongful death statutes prospectively where the amount of recovery was increased or modified by passage of new legislation.

See: Conn v. Young, 267 F.2d 725, 731 (2nd Cir.

1959); Zontelli Bros. v. Northern P. Ry. Co.,

263 F.2d 194, 200 (1959); Herrick v. Sayler, 245 F.2d 171,

172 (7th Cir. 1957); Field v. Witt Tire Co. of

Atlanta, Ga., 200 F.2d 74, 77 (2nd Cir. 1952); State

ex rel St. Louis-S.F. Ry. Co. v. Buder, 515 S.W.2d 409,

411 (Mo. 1974); Mihoy v. Proulx, 313 A.2d 723,

725 (N.H. 1973); Unsatisfied Claim & Judgment Fund

Bd. v. Bowman, supra; Monson v. Nelson, supra;

Muckler v. Buchl, 276 Minn. 490, 150 N.W.2d 689, 697

(1967); Theodosis v. Keeshin Motor Exp. Co., 341

Ill. App. 8, 92 N.W.2d 794 (1950).

10 See: Rogers v. Worthan, 465 P.2d 431 (Okl. 1970); Stevens v. Schickendanz, 316 P.2d 1111 (Okl. 1957).

The Colorado Supreme Court in Jones v. Hildebrant, 550 P.2d 339, 342 (Colo. 1976) recently held that the net pecuniary loss rule was not unconstitutional, and that absent a statutory provision permitting recovery for loss of comfort, society, and protection in a wrongful death action brought by the mother of a minor son, these elements of damages were not recoverable.

11 Anderson Thompson, Inc., v. Logan Grain Supply, 238 F.2d 598, 602 (10th Cir. 1956).