Annotate this Case

1934 OK 301
32 P.2d 882
168 Okla. 274
Case Number: 21881
Decided: 05/15/1934
Supreme Court of Oklahoma



¶0 1. Appeal and Error--Cause not Reversed for Erroneous Instruction on Measure of Damages not Objected to Below.
In an action for damages, where the jury returns a verdict for a lump sum which is less than the amount sued for, and there is no complaint that the verdict is excessive, the judgment will not be reversed because the court in instructing the jury does not accurately define the measure of damages. where the defendant does not suggest the correction of said instruction at the time it is given.
2. Appeal and Error--Quoting Pleadings in Statement of Case to Jury Held not Reversible Error in Absence of Exceptions and Request for Correct Instruction.
Where the petition is not complicated or prolix, and the defendant does not request a correct instruction stating the issues, and the court in stating the case quotes the pleadings and in other instructions concisely states the issues, and the defendant does not save an exception to the statement of the case as given, the judgment of the lower court will not be reversed because the court did quote the pleadings in its statement of the case.
3. Trial--Refusal of Requested Instructions Requiring Modification not error.
It is not error to refuse to give requested instructions which cannot be given without correction or modification.
4. Same--Refusal of Requested Instructions Covered in General Instructions of Court.
It is not error to refuse to give requested instructions which are covered by the general instructions of the court.

Appeal from District Court, Garfield County; O. C. Wybrant, Judge.

Action by F. M. Wood against the Shell Petroleum Corporation and C. V. Kennedy. Judgment for plaintiff, and defendants appeal. Affirmed.

H. C. Thurman, Thompson, Mitchell, Thompson & Young, John M. Thompson, and Lee B. Thompson, for plaintiffs in error.
Simons, McKnight, Simons, Mitchell & McKnight, for defendant in error.


¶1 This is a companion case to Shell Petroleum Corporation et al. v. Muriel Wood, No. 21880, this day decided, 168 Okla. 271, 32 P.2d 879. By agreement of the parties they were consolidated for the purpose of trial, but separate verdicts were rendered, and they have been briefed together. The opinion in that case is adopted as part of the opinion in this case.

¶2 The plaintiff, F. M. Wood, is the husband of Muriel Wood, plaintiff in case No. 21880, and this action was filed by him to recover for medical and hospital bills incurred in treating his wife for the injuries which she sustained in said accident, and for loss of her services as a wife.

¶3 The evidence bearing on the amount of damages was as follows: That Mrs. Muriel Wood was 23 years of age at the time of the accident; that she was permanently injured, and will be a cripple the remainder of her life; that she is unable to perform her household duties, and plaintiff is compelled to employ some one to do most of her work, and such help costs from $ 4 to $ 7 per week; that she was in the hospital for more than five months, and the hospital bill was $ 1,046 and the medical and surgical bill was $ 635. The testimony as to the hospital bill, and the medical and surgical bill, was given by the attending physician who was also in charge of the hospital. The plaintiff failed to prove specifically that these charges were reasonable, and after both sides had rested, the defendants requested the court to strike from the record all the testimony as to expenses incurred and the value of the services of Mrs. Wood, which request was denied by the court.

¶4 The defendants make the same assignments of error in this case as in said cause No. 21880, and further assign as error the action of the court in submitting to the jury, as part of the measure of damages, the medical bills and other expenses. The plaintiff, in his petition, asked for damages in the sum of $ 25,000. The jury returned a verdict for $ 5,000, on which judgment was rendered. No complaint is made, either in the motion for new trial or in the petition in error, that the verdict is excessive. The defendants did not submit a requested instruction as to the measure of damages. Under these circumstances, and under the following authorities, the error, if any, will not justify a reversal. Palacine Oil Co. v. Philpot, 144 Okla. 123, 289 P. 281; St. Louis-S. F. Ry. Co. v. Loftus, 109 Okla. 141. 234 P. 607: Fort Smith & Western R. Co. v. Moore, 66 Okla. 322, 169 P. 904.

¶5 Judgment affirmed.