
    DEEP ROCK OIL CORPORATION v. SHERIDAN.
    No. 3713.
    United States Court of Appeals Tenth Circuit.
    Jan. 31, 1949.
    
      Harold E. Baily, of Chicago, 111. (W. F. Semple, of Tulsa, Okl., on the brief), for appellant.
    Mart Brown, of Oklahoma City, Okl. (Monnet, Hayes & Brown, of Oklahoma City, Okl., McCollum & McCollum, of Pawnee, Okl., on the brief), for appellee.
    Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
   HUXMAN, Circuit Judge.

On February 28, 1945, Richard Sheridan, hereinafter called the deceased, died of injuries received while engaged as an employee of Deep Rock Oil Corporation in repairing one of the company’s steel tank cars.

On September 7, 1945, Lena Sheridan, widow of the deceased, instituted an action, as administratrix of the decedent’s estate in the District Court of Payne 'County, Oklahoma, against Deep Rock, in which she sought damages in the sum of $2,950, by reason of pain, agony, and mental suffering by deceased prior to his death. The petition recited that the action was brought by her as administratrix of the estate of the deceased and for the use and benefit of the estate, and that he left as his sole and only heirs, his widow and three named sons.

The evidence adduced at the trial was substantially as follows. Deceased, a steel worker, had been an employee of Deep Rock for thirty years. On the day of the accident, he and a co-worker had been instructed by their foreman to repair the outlet leg and valve of a steel tank car. The car had been steamed out the day before to dissipate any gasoline fumes therein. On the morning of the day of the accident, the car was pushed into a shed to make the necessary repairs. The car was standing in a northerly and southerly direction. It was a standard car 42 feet long on which was placed a horizontal tank 6 feet and 7 inches in diameter. On top was a vertical cylindrical dome, 53 inches in diameter, with an opening at the top to permit room to enter the car. Along the side of the tank, mounted on brackets approximately 10 feet from the ground, was a board approximately 6 feet long, 12 inches wide, and 2 inches thick. It was commonly called a dome board. The distance from the center of this board to the crown of the tank car was 44 inches. A steel ladder was attached to the dome board and ran down the side of the tank' car to a running board which was approximately at the base of the tank and ran the length of the car. There was also a steel ladder attached at the end of the car by which persons could ascend the car to the board walk along its side.

After the car had been pushed into the shed, deceased’s co-worker placed a fourteen-foot ladder against the dome board. The ladder had a 2 inch steel spike in each leg at the base. It was a good substantial ladder with no defects in it. It had no attachments by which it could be clamped to the car at the top. The co-worker, carrying a shorter ladder which was to be placed inside the tank car, followed by deceased, ascended the ladder and entered the car. After remaining inside the tank car about twenty minutes they came out, descended the ladder and attached a long air hose to a pneumatic hammer called a rivet buster, which weighed approximately twenty-eight pounds. They then again ascended the ladder, the co-worker preceding deceased. The co-worker again entered the car and deceased handed him the rivet buster. The co-worker was in the car from fifteen to twenty minutes making the repair, at the end of which time he handed the rivet buster up to deceased. There was about 10 feet of hose inside the car while the repair was being made. When deceased was handed the rivet buster, he pulled out the hose that had been on the inside of the car.

The only person who saw anything of the accident was another worker working on the underpart of the car. He looked up and saw deceased falling when deceased was about six feet from the ground. He testified that deceased was falling in a southerly direction, with the ladder following him. The ladder fell on top of deceased after he 'hit the ground. There was some testimony that there was some frost on the dome 'board when the car was on the outside, but it may be fairly said that there was no frost on the dome board after the car was on the inside and when the employees ascended the ladder and entered the car. There was also testimony that deceased had ascended and descended such a ladder as this one approximately four or five times a day when such work was being done. So also, there was testimony that when ascending such cars, the employees at times used the steel ladder at the end of the car and at other times used a ladder such as this one. It is also quite clear that the choice of ladders to be used in ascending the cars in performing such work was with the employees and that they were not required to ascend cars by use of such ladders.

Plaintiff alleged, as grounds of negligence, that the dome board was frosty and slick; that the ladder had no means of being fastened to the dome board; and that Deep Rock failed to furnish deceased a safe place in which to work and safe appliances to work with and that this was the proximate cause of the injuries. At the close of plaintiffs case, a demurrer to her evidence was sustained and judgment was entered in favor of Deep Rock. An appeal was taken from that judgment to the Supreme Court of Oklahoma.

On February 26, 1946, while the appeal in the first case was pending in the Supreme Court of Oklahoma, appellant, as adminis-tratrix of decedent’s estate, instituted this action in the same State Court. The complaint alleged that the action was brought for the use and benefit of the widow and three sons of deceased. In this action plaintiff sought damages for the wrongful death of deceased in the sum of $38,934, and for $813.30, for funeral and burial expenses. The complaint charged Deep Rock with the same acts of negligence that were charged in the first action. The action was removed by Deep Rock to the United States District Court for the Western District of Oklahoma. After such removal, Deep Rock filed an answer which, among other defenses, set up the judgment in the first, action as a 'bar to the instant action, asserting that such judgment constituted an estoppel since the question of the company’s negligence had been decided by that court adversely to appellee. Deep Rock filed a motion for summary judgment which was overruled by the trial court.

This cause was then tried to a jury. At the conclusion of appellee’s testimony, Deep Rock moved for a directed verdict. This motion was overruled. At the conclusion of the trial, the case was submitted to a jury which returned a verdict for appellee for $2,500, plus funeral expenses of $775. Ap-pellee’s motion for a new trial was granted but the new trial was limited to the question of damages alone. The new trial resulted in a verdict for appellee this time for $18,000. Judgment was entered thereon and this appeal followed.

After the first trial in this case, but before the motion for a new trial was heard, the Supreme Court of Oklahoma decided the appeal taken from the judgment in the first case. It affirmed the ruling of the trial court in that case in effect holding that appellee had failed to make a case of negligence against Deep Rock but that assuming there was some evidence of negligence, there was a complete failure to show a causal connection between the same and the resulting injury.

Numerous errors are urged for reversal. Among these are: (1) That the court erred in overruling appellant’s motion for summary judgment; (2) That the court erred in denying appellant’s motion for a directed verdict at the conclusion of the evidence; (3) That the trial court erred in granting a new trial limited to the question of the amount of damages alone.

It is our conclusion that the trial court erred in refusing to sustain appellant’s motion for summary judgment. Two separate and distinct causes of action arose if the injury to and the death of the deceased was caused by the negligence of Deep Rock. One was for injury to his person, such as pain and suffering. This action, under the Oklahoma law survives and may be brought notwithstanding the death of the injured person. 12 Okl.St.Ann. § 1051. The other, an independent cause of action, is for damages resulting from the death of the injured person. The damages in such a case inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin. 12 Okl.St.Ann. § 1053.

Construing these statutes, Oklahoma has held that the two causes of action are coexistent and that a recovery on the one does not bar the institution and maintenance of the other; that the damages to the estate in the one 'begin with the wrong and end with the death of the injured persons while damages to the designated survivors being with the death, and that they do not cover the same field nor do they overlap.

But Oklahoma has not said that if in the action by the administrator of the estate for injury to the deceased, the administrator fails to recover because of an adjudication of non-negligence in defendant’s favor, that the administrator thereafter might maintain the second action and again seek to litigate the question of defendant’s negligence.

There is a sharp conflict in the authorities on this question. Thus, Ohio and Massachusetts hold that an adjudication of non-liability in defendant’s favor in the first action is no bar to the maintenance of the second action. However, in Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256, 104 A.L.R. 1471, and Frescoln v. Puget Sound Traction Light & Power Co., D.C.Wash., 225 F. 441, 443, it was held that an adverse judgment in the first case was a bar to the prosecution of the second. In the Frescoln case the court said: “The right of recovery in either case is predicated upon some act of omission or commission on the part of the defendant in the discharge of an imposed duty. As set forth in the answer, the judgment of the state court was that the act of the defendant did not cause the death upon which either action was predicated. If the adjudication of the state court could be res adjudicata in this action, then the motion must be denied. 'Can the plaintiff commence an action wherein she seeks to recover damages to herself based upon acts of negligence of the defendant which a competent court has already adjudicated do not exist? While the right of recovery in the instant case is not the same right of recovery as in the other case, each case is predicated upon and supported by the same facts. It would seem to be rather an anomalous situation if a party could predicate a right of recovery and have judgment awarded against him, and die, and his widow thereafter, upon allegations of negligence, institute a proceeding based upon the same act of negligence, and be permitted to litigate over the same facts."

In Keith v. Willers Truck Service, supra, an adjudication in an action by a husband, in his own right for damages for personal injuries, that the defendant was not negligent, was held to be conclusive in another action brought by him as administrator of the estate of his wife for her alleged wrongful death resulting from the same accident where he was also the sole beneficiary. Notwithstanding a contention respecting difference in capacities, the court regarded the representative or fiduciary relationship ordinarily attendant upon the office of administrator as having reached the vanishing point, under such circumstances, and having become nominal, so that, no other interest being involved or represented, the difference should be regarded as a mere fiction.

The Restatement of Law of Judgments, Par. 92, Page 455, provides:

“(1) Where a judgment is rendered for or against a person in his lifetime in an action based on an act which later causes his death,

“(a) a judgment for such person or, if on the merits, against him, precludes an action for causing his death, if an action for causing death is permitted only if the decedent had a cause of action at the time of death, and

“(b) matters adjudicated in the decedent’s action are determinative in an action for causing death.

“(2) If two actions are brought, one under a survival or revival statute, and one under a death statute, a judgment in one action

“(a) does not preclude the other action, and

“(b) makes the matters adjudicated therein binding in the other action if, but only if, the 'beneficiaries of the two actions are the same persons.”

In Henderson v. United States Radiator Corporation, 10 Cir., 78 F.2d 674, 675, this court said:

“Any right, fact or matter in issue and directly adjudicated, or necessarily involved in the determination of an action before a competent court in which a judgment or decree has been rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the same parties and their privies, whether the claim, demand, purpose or subject-matter of the two suits is the same or not. * * *

“To constitute an estoppel under the doctrine of res judicata, the action in which the judgment was rendered and in which it is asserted as an estoppel, must be between the same parties or their privies. But where both the party asserting the judgment as an estoppel and the party against whom it is asserted were parties to the action in which the judgment was rendered, it is no objection that such action included some additional parties who are not joined in the action in which it is asserted.”

To the same effect, see also New York Life Insurance Company v. Cooper, 10 Cir., 167 F.2d 651. Oklahoma has held that in determining whether the same party is bringing the second action, it will look beyond the nominal party plaintiff.

The first action was brought by appellee as administratrix of the estate. It recited that it was brought for the use and benefit of the estate. It also named the appellee, as widow, and her three sons as the sole and only heirs of the deceased. Any recovery in that’ action would, therefore go first to the creditors, if -any, and next' to appellee and her three sons. The creditors, if any, and appellee, as widow, and her three sons were, therefore, the real parties in interest and the action which she maintained in her representative capacity was instituted for their benefit.

The instant action was likewise brought by appellee as administratrix of the estate, for the sole benefit of herself and her three sons. Thus, appellee, individually, and her three sons were present as parties plaintiff in the first action by her as administratrix of the estate, and they are the sole parties plaintiff through the same representation in this action. The fact that the creditors of the estate, if any, were parties plaintiff in the first action by representation and are not so present in this action is of no importance in the resolution of this question. Henderson v. United States Radiator Corp., 10 Cir., 78 F.2d 674, 677.

It is urged that in Baltimore American Insurance Company v. Cannon, supra, the Oklahoma court adopted the Ohio rule that an adverse judgment does not bar the second action by the administrator of the estate. In the first action in the Baltimore case, a judgment was obtained by plaintiff. The sole question before the Supreme Court in that case was whether the two causes were separate and distinct so that the second cause could be independently maintained. This was also one of the questions before the Ohio court in the May 'Coal Company case, supra, and the Ohio court, likewise, held that two separate and independent causes of action arose from the wrongful death of an injured person. It was in support of its conclusion that there were two separate and distinct causes of action, each of which might be maintained independently of the other, that the Ohio case was cited by the Oklahoma Supreme Court, and the approval of the Ohio doctrine must be limited to the question before the Oklahoma Court. It was not cited to show approval of the Ohio rule that an adverse judgment in the first case does not bar a second action by the administratrix based upon the same allegations of negligence because that question was not before the Oklahoma Court.

It is our conclusion that there was sufficient identity of parties in the two actions so that the adjudication of non-liability in the first action constituted an estoppel against appellee and estopped her from maintaining this action. It follows that the court should have sustained appellant’s motion for summary judgment. The conclusion we have reached on this question completely and fully disposes of the case and makes unnecessary a consideration of the other issues presented.

The judgment is, therefore, reversed and the cause is remanded with directions to enter a summary judgment in favor of appellant. 
      
       Sheridan v. Deep Rock Oil Corporation, 205 P.2d 276.
     
      
       See St. Louis & S. F. Ry. Co. v. Goode, 42 Okl. 784, 142 P. 1185; Baltimore Am. Ins. Company of N. Y. v. Cannon, 181 Okl. 244, 73 P.2d 167.
     
      
      
         See May Coal Company v. Robinette, 120 Ohio St. 110, 165 N.E. 576, 64 A.L.R. 441; McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 107 N.E. 439.
     
      
       “Comment on Subsection (2):
      “c. Two actions brought after death of injured party. Under the normal statutes, a judgment under a survival statute includes only damages to the time of the decedent’s death, while under a death statute the damages include the harm to the estate resulting from the death and do not include damages for mental suffering and other elements of damages existing before the death. There are therefore two distinct causes of action, one for harm to the decedent before death and one for harm resulting from the death to persons designated by statute. Judgment in one action therefore does not merge the claim set up in the other action and does not, of itself, bar the other action. On the other hand if the two actions are brought on behalf of the same beneficiaries, any matter finally adjudicated in one action becomes res judicata in the other action. If, however, no one of the beneficiaries in one action is a party in the other action, the rules of res judicata do not apply. Likewise, if in the second action there are some beneficiaries not represented, in tbe first action, tbe rules of res judicata do not apply.
      “Illustrations:
      “4. A is injured and subsequently dies as a result of B’s negligence. He leaves a widow, 0, and two children. O brings an action as administratrix of A’s estate under a survival statute and also brings an action as tbe person named to do so for tbe benefit of herself and children under a death statute. In the action under tbe survival statute, judgment is rendered in C’s favor for $5,000, this being based upon A’s pain and suffering during tbe period be lived, bis loss of earning capacity during that time and other similar elements of damages. This judgment does not prevent a judgment in O’s favor in tbe action under tbe death statute.
      “5. Same facts as in Illustration 4, except that judgment was rendered in favor of B on tbe ground that be was not negligent. If tbe widow and the two children are tbe sole beneficiaries of tbe estate, tbe adjudication in tbe action under tbe survival statute bars a judgment in the action under tbe death statute.”
     
      
       in St. Louis S. F. Ry. Co. v. Stuckwish, 137 Okl. 251, 279 P. 683, the syllabus in part reads: “The question of identity of parties in two actions is of substance; parties nominally the same may be in legal effect different, and parties nominally different may be in legal effect the same.”
     
      
       84 Okl.St.Ann. § 2. See, St. Louis & S. F. Ry. Co. v. Goode, supra. Cir., 141 F. 1; In re Stanley Engineering Corporation, 3 Cir., 164 F.2d 316.
     