PRODUCERS & REFINERS CORP. v. CASTILE

PRODUCERS & REFINERS CORP. v. CASTILE
1926 OK 332
246 P. 615
118 Okla. 42
Case Number: 16266
Decided: 04/06/1926
Supreme Court of Oklahoma

PRODUCERS & REFINERS CORP.
v.
CASTILE, Adm'x.

Syllabus

¶0 1. Master and Servant--Negligence--Liability for Injuries to Servant. Paragraphs 1 to 6, inclusive, of the syllabus in Producers & Refiners Corporation v. Castile, Adm'x, 89 Okla. 261, 214 P. 121, are hereby adopted and announced as the law of this case.
2. Trial -- Instructions -- Sufficiency Refusal of Requests. It is well settled that where the court instructs the jury clearly, fairly, and fully upon all phases of the case, it is not error to refuse to give any and all requested instructions.
3. Master and Servant--Liability for Negligent Death of Servant--Instructions. Record examined, and held, that the instructions given by the court are substantially correct and clearly, fairly, and fully advise the jury upon all the phases of the case.
4. Death--Recovery of $ 1,320 for Pain and Suffering of Deceased not Excessive. A verdict of $ 1,320 for pain and suffering from personal injuries to the deceased, while in the employ of the defendant, causing death about 34 hours after the injury, held, not excessive.

Guy F. Nelson and Chas. F. Carnine, for plaintiff in error.
Robinett & Ford, for defendant in error.

FOSTER, C.

¶1 On August 6, 1921, defendant in error, plaintiff below, began her action in the district court of Oklahoma county against the plaintiff in error, defendant below, for damages resulting to the next of kin, for the wrongful death of E. L. Castile, the husband of the administratrix, resulting from injuries received while the said E. L. Castile was an employee of the plaintiff in error. That cause came on for trial in the district court of Oklahoma county on the 9th day of November, 1921, resulting in a verdict in favor of the defendant in error and against the plaintiff in error for the sum of $ 30,000. Thereafter a motion for a new trial was overruled and said cause was appealed to this court; thereafter this court rendered an opinion affirming the judgment of the trial court, which opinion and decision is reported in 89 Okla. 261, 214 P. 121; thereafter, and on the 17th day of July, 1923, the defendant in error began this action in the district court of Tulsa county for damages to the estate of E. L. Castile, deceased, for conscious pain and suffering of the deceased, and for loss of time between the time of his injury and his death, and for medical and hospital bills. This action was tried before the Hon. Z. I. J. Holt, judge of the district court of Tulsa county, on the 13th day of November, 1924, resulting in a verdict by the jury in favor of the defendant in error for the sum of $ 1,750. Parties will be hereinafter designated as they appeared in the trial court.

¶2 By stipulation of the parties, the cause was tried substantially upon the record made in the wrongful death action tried in the district court of Oklahoma county, by counsel reading the same from a copy of the case-made in that case. Motion for a new trial was filed by the defendant, heard, and overruled, exceptions taken, and the cause comes on regularly to be heard in this court on appeal by the defendant from said verdict and judgment. For a reversal of the judgment the defendant urges the following errors: First: The refusal of the trial court to sustain its demurrer to plaintiff's evidence. Second: The refusal of the trial court to give the peremptory instruction requested by the defendant. Third: In the giving, by the trial court of certain instructions. Fourth: The refusal of the trial court to give other requested instructions; and, Fifth: The refusal of the trial court to set the verdict aside as excessive. It can serve no useful purpose at this time to state the issues joined in the trial court and the evidence adduced in relation thereto in detail. A full statement of these facts and issues may be obtained by referring to the opinion of this court in the wrongful death action. 89 Okla. 261, 214 P. 121.

¶3 As in the wrongful death action the principal acts of negligence charged against the defendant may be summarized as follows: First: That the driver of the truck was wholly inexperienced in that line of work, and that the defendant was negligent in not making reasonable investigation into his character, skill, and habits of living before employing him. Second: That it was the duty of the defendant to supply the deceased a reasonably safe means of conveyance; and that it negligently violated this duty in that the truck furnished was not a reasonably safe means of conveyance for the deceased and other employees to ride upon, because the same was not only in an old, worn, and defective condition, but it was inadequate in that it was a one-ton Ford truck with a freight body, without any springs, such as are usual and customary for passenger conveyances, and the defendant failed and neglected to maintain on the bed of said truck seats or the convenience of its employees, and they failed and neglected to provide and maintain on the bed of said truck bannisters, railings, or sideboards, or other means whereby persons riding thereon could hold on and could be prevented from falling from the bed of said truck, or on the bed thereof, in the event of a sudden or other unusual movement of said truck. The evidence in relation to these two alleged acts of negligence was, by the trial court, submitted to the jury, and the jury by its verdict found the issues in favor of the plaintiff, and rendered its verdict accordingly against the defendant in the sum of $ 1,750.

¶4 In the wrongful death action (89 Okla. 261), this court expressly stated in the body of the opinion:

"On this point it is sufficient to say that we have examined the record carefully and are satisfied that the evidence reasonably tends to show negligence on the part of the defendant in the two respects alleged in plaintiff's petition."

¶5 In that case this court, in connection with its consideration of the evidence adduced, laid down the applicable rules which, we think, correctly stated the law applicable to the case. These propositions of law are stated in the first six paragraphs of the syllabus. We adhere to these principles and re-announce them as the law of this case. Counsel say, however, that the conclusions reached in that opinion are not based upon the points raised and argument submitted by the defendant in its brief filed in the instant case. But since the court in the wrongful death action had before it the same evidence on which the instant case is submitted, the court necessarily had before it everything necessary to a correct conclusion in that case, whether the identical points were emphasized by counsel in the argument or not.

¶6 Under the authority of the case cited (80 Okla. 261), we conclude that the action of the trial court in overruling defendant's demurrer to plaintiff's evidence and in refusing, a peremptory instruction must be sustained. Complaint is made that the court erred in giving to the jury instructions Nos. 7 and 11 of its general charge over the defendant's objection, and in refusing to give defendant's requested instruction No. 7. An examination of the record in the wrongful death action on appeal discloses that the trial court in that case gave instructions Nos. 7 and 11 in practically the exact language in which they were given in the instant case. The record in that case also discloses that the trial court refused defendant's requested instruction offered in the identical language employed in instruction No. 7.

¶7 This court in commenting on the instructions complained of in the wrongful death action said in the syllabus:

"Record examined, and held, * * * that the instructions given by the court are substantially correct and clearly, fairly, and fully advise the jury upon all the phases of the case."

¶8 Commenting further in the body of the opinion, the court said:

"It is also well settled that where the court instructs the jury clearly, fairly, and fully upon all phases of the case, it is not error to refuse to give any and all requested instructions (citing authorities).

"In regard to the instructions requested by the defendant and refused by the court, we may add that many of them are based upon the erroneous assumption that the defendant was entitled to the benefit of the fellow-servant doctrine as a defense and were properly refused on this ground. And that others, while probably correct as abstract propositions of law, were either covered by the instructions given by the court or constituted nice refinements of applicable principles of law, which in no way could be helpful to the jury."