230 P. 509 | Okla. | 1924
Mary Winton, as the mother and next of kin of Gilbert Groschner, deceased, brought this action in the district *100 court of Okmulgee county against the Whitehead Coal Mining Company, a corporation, for damages which she alleged she had sustained by reason of the death of said Gilbert Groschner through the alleged wrongful act of said company. In a trial to the court and a jury she recovered judgment, and the company has appealed to this court. We will refer to the parties according to the position they occupied in the lower court.
In the trial the plaintiff, over the objections and exceptions of the defendant, introduced in evidence the mortality table showing the expectancy of life of the plaintiff herself. The defendant assigns this as error. In the case of Missouri, O. G. Ry. Co. v. Lee et al.,
The plaintiff's right to maintain this action is based upon section 825, Comp. Stat. 1921, and it was necessary for her to allege and prove that no personal representative had appointed of the estate of her deceased son. She did so allege, but the general denial contained in the defendant's answer controverted this allegation. She failed to establish the fact by evidence.
We do not think the facts bring this case within the rule announced in section 9 of the syllabus of the opinion of this court in the case of Curtis Gartside v. Pigg,
McNEILL, C.J., and BRANSON, WARREN, and GORDON, JJ., concur.