ANNOTATION.

Effect of death of beneficiary upon right of action under death statute.

This annotation is supplementary to an earlier annotation in 13 A.L.R. 225.

In an action to recover damages to a widow from the negligent killing of her husband, where she dies before trial, the recovery in her behalf is limited to the pecuniary loss sustained by her up to the time of her death. SIDER v. GENERAL ELECTRIC CO. (reported herewith) ante, 158.

Under the Federal Employers' Liability Act, it has been held that a personal representative may recover for the death of an employee, although he leaves no wife or child, and a surviving parent dies subsequently to his death and before action is brought to recover therefor, he (the employee), however, leaving a dependent sister, who is his next of kin. The amount of recovery was limited to the pecuniary loss of such dependent sister. Wells-Dickey Trust Co. v. Chicago, B. & Q. R. Co. (1924) Minn., 199 N. W. 101. In thus construing the Federal act, the court followed the construction of the state act and held that the liability of the employer continued from class to class of beneficiaries, upon a preceding class becoming nonexistent through the death of its mem

bers after the death of the employee; the amount of damages recoverable changing, but the liability continuing.

Where husband and wife each possessed a cause of action for the negligent killing of certain of their children, it was held in St. Louis, B. & M. R. Co. v.. Watkins (1922) Tex. Civ. App. —, 245 S. W. 794, that the death of the father did not in any way affect the right of action of the mother. The court said: The "suit was brought by the mother of the children to recover the losses sustained by her from the death of her two children. Her claim cannot be entangled with or obscured by the fact that the father of the children was wounded in the collision and died the next day after the children died. That fact produced no complications such as are sought to be raised by appellant. When the father died, his claim for damages from the death of the children died with him, and the claim of appellee is no more affected by his outliving the children than it would have been if he had died before or at the time of the death of the children. Appellee sued for and recovered only her own damages for the loss of her children." A. G. S.

SCOTT AUTO & SUPPLY COMPANY, Plff. in Err.,

Bailment, § 21-absence of ordinary care - liability effect of note. 1. A bailee for hire is liable to the bailor for failure to exercise ordinary care to protect the bailed property, notwithstanding notice of nonliability, or contract to such effect, or an agreement to assume risk to the contrary, as the implied or express contract to limit the bailee's liability to gross negligence or wanton destruction of the property, or to a less degree of care than ordinary care, is contrary to public policy and is contrary to the express provisions of § 5206, Comp. Stat. 1921.

[See note on this question beginning on page 169.]

Headnotes by SHACKELFORD, C.

(- Okla. - 226 Pac. 372.)
lia-

loss by fire

Bailment, § 21
bility.
2. Where plaintiff sues a garage
operator for failure to return or de-
liver his automobile, which was placed
in the care, custody, and control of
the operator for hire, and the garage
operator answers by alleging that at
the time the automobile was placed in
defendant's garage there was posted
in the garage, in plain view, a large
sign that defendant would not be liable
for destruction by fire, and that plain-
tiff was notified at the time of placing
his automobile in the garage that the
operator thereof would not be liable
for the destruction of the automobile
by fire, and that the plaintiff assumed
the risk of destruction by fire; such
allegations do not state a defense, as
the law does not permit a bailee for
hire, by giving notice or by contract,
to limit his liability to a less degree of
care than ordinary care; and, under
the circumstances presented here, it
was not error to sustain a demurrer to
such alleged defense.

[See note in 15 A.L.R. 683, 694.] Evidence, § 1177 exclusion of tice by bailee.

no

3. It is not error to exclude evidence offered upon the part of a bailee for hire for the purpose of showing that he gave notice at the time the property was placed in his care, custody, and control that he would not be responsible for destruction of the property by fire, or that the bailor assumed the risk of destruction of the property while in the care, custody, and control of the bailee. Trial, § 319

struction.

refusal of duplicate in

4. It is not error to refuse to give a requested instruction, although a

correct statement of the law, when the same proposition of law is embodied in the court's instructions and properly submits the law of the case to the jury.

[See 14 R. C. L. 752; 3 R. C. L. Supp. 275; 4 R. C. L. Supp. 916.] Trial, § 336 instruction of proof.

burden

5. Where a bailor sues a bailee for hire for failure to return the bailed property, it is not error to instruct the jury that the burden is on the bailee to show that the property was destroyed by some means not within his control, where all the instructions, taken together, make it plain to the jury that the burden of proof is upon the plaintiff or bailor in the whole case, to show that the destruction of the property was the result of the bailee's failure to exercise ordinary care to preserve the property.

[See 3 R. C. L. 151, 152; 1 R. C. L. Supp. 776. See also notes in 9 A.L.R. 559; 15 A.L.R. 697.]

ERROR to the District Court for Oklahoma County (Phelps, J.) to review a judgment in favor of plaintiff in an action brought to recover damages for the destruction of his car by fire while in defendant's possession for storage and painting. Affirmed.

The facts are stated in the Commissioner's opinion. Messrs. Pearson & Baird for plaintiff in error.

Messrs. Shirk, Danner, & Fowler and Clarence Mills, for defendant in

error:

The presumption of liability for the breach of the bailment contract rests on the defendant, as the proof of the bailment and the failure to return un

der said contract makes out a prima' facie case, and places on the defendant the burden of proceeding and showing his defense, if he has any.

Stone v. Case, 34 Okla. 5, 43 L.R.A. (N.S.) 1168, 124 Pac. 960; Standard M. Ins. Co. v. Traders' Compress Co. 46 Okla. 356, 148 Pac. 1019; Wilson v. Southern P. R. Co. 62 Cal. 164.

(- Okla. - 226 Pac. 372.)

matter sufficient to constitute a defense. The court sustained the demurrer to ¶ 4, and overruled the demurrer as to 5 and 6. It seems that no exception was reserved to the ruling of the court by either party.

On June 28, 1921, defendant filed an amended answer. The amended answer charged in the fourth paragraph that the car was left with the defendant at the plaintiff's risk; otherwise it appears to be the same as the original answer. The plaintiff moved to make ¶ 4 more definite and certain by showing and alleging by what agreement the car was left at plaintiff's risk. The motion to make more definite was overruled. Plaintiff then demurred to the fourth paragraph of the defendant's answer, which was overruled. Thereafter plaintiff filed reply, joining the issues. On November 9, 1921, the defendant moved the court for permission to revise ¶ 4 as alleged in the original answer, with the additional language, "except such as may have been occasioned by want of ordinary care." This had the effect of offering to make an amendment to ¶ 4 so as to say that the car was left in defendant's care; plaintiff having waived liability of the defendant for destruction by fire "except such as may have been occasioned by want of ordinary care." Whether there was a ruling by the court upon this motion is not disclosed by the record.

The

The case was called for trial and tried to a jury on the 6th of January, 1922, resulting in a verdict for plaintiff in the sum of $900, upon which judgment was entered for plaintiff against defendant. defendant prosecutes appeal and assigns many errors of the trial court, which are submitted in the brief and argument under the following propositions: (1) The court erred in sustaining the demurrer to the fourth paragraph of defendant's answer. (2) The court erred in not permitting defendant to amend its amended answer. (3) The court erred in overruling defendant's demurrer to plaintiff's evidence.

(4)

(4)

The court erred in excluding competent evidence offered by defendant. (5) The court erred in refusing defendant's requested instruction No. 1. (6) The court erred in instructing the jury that the burden was on defendant to free itself from negligence. (7) Error in the assessment of damages.

1. In ¶ 4 of the answer the defendant alleged by way of affirmative defense that a large sign was posted in defendant's place of business that it would not be liable for destruction of cars by fire, and in addition to the sign the plaintiff was notified by defendant's officers at the time he placed the car with defendant that it would not be liable for destruction by fire, and the plaintiff waived any liability on the part of the defendant in case his car was destroyed by fire in defendant's place of business, and left the car at his own risk. To this paragraph of the answer the court sustained a demurrer.

We think that the ruling of the court in sustaining the demurrer to ¶ 4 was not error. The view we take of by fire-liability. the matter is that a

Bailment-loss

-absence of

of notice.

care

garage company cannot escape lia-
bility for destruction of cars by fire,
by posting a notice or giving notice
to the owner of the
car that the defend- ordinary
ant will not be liable liability-effect
for destruction by
fire, when the destruction by fire is
occasioned by lack of ordinary care
on the part of the defendant. Post-
ing the notice or giving the notice
has no greater or further effect than
saying that defendant will not be
liable beyond the use of ordinary
care to prevent the destruction by
fire. The posting or giving of such
notice could not lessen the defend-
ant's liability for negligence. The
risk that the plaintiff assumed was
that, if his car should be destroyed
by fire, occasioned by means not
within the control of the defendant
in the use of ordinary care, then de-
fendant should he held harmless.
Notwithstanding the assumption of