OKLAHOMA GAS & ELEC. CO. v. SPIVA

OKLAHOMA GAS & ELEC. CO. v. SPIVA
1937 OK 566
80 P.2d 941
183 Okla. 253
Case Number: 27120
Decided: 10/12/1937
Supreme Court of Oklahoma

OKLAHOMA GAS & ELECTRIC CO.
v.
SPIVA

Syllabus

¶0 DEATH--ACTION FOR WRONGFUL DEATH OF SON--Evidence of Plaintiff Subject to Demurrer Absent Proof of Allegation That no Administrator Had Been Appointed.
In an action by widow for the wrongful death of her deceased son, wherein it is alleged that no administrator has been appointed upon the estate of said decedent, and where such allegation is put in issue, it is necessary to submit proof in support thereof before recovery can be had. Under such circumstances, if the plaintiff fails to submit such proof, it is reversible error to overrule a demurrer to the evidence of the plaintiff.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action by Mrs. Docia Spiva against the Oklahoma Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed.

Hal C. Thurman and Harold C. Thurman, for plaintiff in error.
Dudley, Hyde, Duvall & Dudley and Phillips, Trammell, Estes, Edwards & Orn, for defendant in error.

HURST, J.

¶1 The plaintiff, Mrs. Docia Spiva, as next of kin of Carl Spiva, deceased, filed this action to recover damages for the death of Carl Spiva, caused by electrocution. It appears that Carl Spiva was an inmate of the Methodist orphanage near Brititon and a kite with copper wire, as a part of the string, came in contact with a high voltage wire belonging to the defendant, resulting in the death of Carl Spiva. The plaintiff alleged that no administrator of the estate of Carl Spiva had been appointed, but introduced no evidence to support this allegation, and the defendant argues this as one of the grounds for reversal. The defendant demurred to the evidence of the plaintiff and also moved for a directed verdict, both of which were overruled. The plaintiff argues that the failure to make proof of the fact that no administrator had been appointed is technical and harmless error.

¶2 This court has consistently held that such failure constitutes reversible error. Frederick Cotton Oil Co. v. Clay (1915) 50 Okla. 123, 150 P. 451; C., R.I. & P. Ry. Co. v. Brooks (1915) 57 Okla. 163, 156 P. 362; Sanders v. C., R.I. & P. Ry. Co. (1917) 66 Okla. 313, 169 P. 891; Whitehead Coal Co. Winton (1924) 107 Okla. 99, 230 P. 509; White v. McGee (1932) 157 Okla. 204, 11 P.2d 924; Oklahoma City v. Richardson (1937) 180 Okla. 314, P.2d 334. We decline to depart from the rule laid down in those cases. Other questions are raised by the defendant, but since the case must be reversed for the reason herein stated, it is unnecessary that we discuss the other assignments of error.

¶3 The judgment is reversed, with directions to grant a new trial.