Choctaw, O. & G. R. Co. v. Burgess

• Decision Date: 23 July 1908
• Docket Number: Case Number: 631 Ind Ter T
• Citation: 21 Okla. 653,97 P. 271,1908 OK 149
• Parties: CHOCTAW, O. & G. R. CO. v. BURGESS et al.
• Court: Oklahoma Supreme Court

1908 OK 149

97 P. 271

21 Okla. 653

CHOCTAW, O. & G. R. CO. v. BURGESS et al.

Case Number: 631 Ind Ter T

Supreme Court of Oklahoma

Decided: July 23, 1908

Syllabus

¶0 1. PARTIES--Defects--Mode of Objection. A general demurrer does not raise the question of defect of parties. Same must be taken advantage of by special demurrer or answer, and, as a general rule, when not so done, cannot be raised on appeal.

2. SAME--Misjoinder of Parties Plaintiff. When a person is unnecessarily joined as a party plaintiff, it does not result in a defect of parties plaintiff, but in a misjoinder or excess of such parties, and cannot be taken advantage of by demurrer, but by motion and when such question is not raised in the court below will not be entertained on appeal

3. SAME--Defects and Misjoinder--Time and Mode of Objection. A party desiring to take advantage of a detect of or misjoinder or an excess of parties plaintiff, must promptly interpose an objection in the manner provided by law, and, failing to do so, he will not be permitted to speculate upon a favorable verdict and when afterwards he is disappointed by an adverse finding of the jury, be allowed to raise such question, either in a motion for a new trial or in the appellate court.

4. SAME. Quaere, as to whether or not the question of defect of parties or misjoinder or excess of parties, when neither such appears from the face of the petition, nor is known to the defendant until disclosed at the trial, in the examination of witnesses, can be raised then by proper objection to the introduction of evidence, or upon requested instructions, is not determined, so far as the procedure in force in this state.

5. SAME--Indian Territory Procedure. Following the rule in force in the Indian Territory prior to its admission as a part of the state of Oklahoma, the question of misjoinder of parties could not be raised for the first time by a motion for a new trial, but must have been first taken advantage of either by motion or answer.

6. PLEADING--Misjoinder of Actions in Indian Territory. And, under the rule in force in the same jurisdiction, when two causes of action are imperfectly stated in the complaint or petition, and it cannot be determined whether or not there is a misjoinder of causes of action, the remedy was by motion to require the plaintiff to make its complaint or petition more definite and certain, and then, if it appeared that there was a misjoinder of such causes of action, the point should have been taken advantage of by motion.

7. SAME -- Oklahoma Procedure. Under the procedure now in force in this state, misjoinder of causes of action should be raised by demurrer.

8. CARRIERS--Taking on and Discharging Passengers. When the servants and employees of a carrier of passengers stop its train for the purpose of taking on or letting off passengers, it is its duty to hold same a reasonable length of time to allow such passengers to board or alight with safety; and, in the absence of contributory negligence on the part of the passengers, the carrier is liable for injuries resulting from a failure to perform this duty.

9. TRIAL--Instructions. Whenever the court, in its instructions, gives a correct interpretation and exposition of the law as it relates to the admitted or uncontroverted facts in the case, there is no ground for complaint of error.

10. APPEAL AND ERROR--Reversal--Grounds--Excessive Damages--Remittitur. Under subdivision 4, sec. 4493, Wilson's Rev. & Ann. St. Okla. 1903, section 5202, Gen. St. Kan. 1905, and section 306, Code Civ. Proc. Kan. (section 5151, Mansf. Dig. Ark.; section 3356, Ind. T. Ann. St. 1899), where the verdict is for damages, and it appears that same were given under the influence of passion or prejudice, it is the duty of the appellate court to reverse and remand for a new trial, in some cases directing the trial court to give the plaintiff the option to remit the excess, and allow him to take judgment for the residue.

11. SAME -- Review -- Question of Fact. Under subdivision 6, sec. 4493, Wilson's Rev. & Ann. St. Okla. 1903, section 5202, Kan. 1905, section 306, Code Civ. Proc. Man. (section 5151, Mansf. Dig. Ark.; section 3356, Ind. T. Ann. St. 1899), where there is testimony reasonably tending to support the issues upon which the verdict is based, an appellate court will not disturb the findings of the lower court.

12. SAME--Excessive Damages. Appellate courts should sparingly exercise the power of granting new trials on the ground of excessive damages, and only when it appears that the verdict is so excessive as per se to indicate passion or prejudice.

13. DAMAGES--Measure--Personal Injuries. In an action to recover compensation or damages for injury to the person, so far as it is susceptible of an estimate in money, the plaintiff is entitled to recover the expenses of the cure, or reasonably attempted cure, the probable costs of the future treatment or nursing, when the injury is permanent or irremediable, and the loss of time up to the verdict, and probable future loss from incapacity to do as profitable labor as before, both pain and suffering proximately caused by the injury.

14. APPEAL AND ERROR -- Review -- Amount of Damages--Case. Where the jury found that the injuries sustained were painful, serious, and probably permanent, incapacitating the plaintiff, a woman between 25 and 26 years of age, previously in good health, who was a wife and a mother, from attending to her own domestic affairs and duties, the jury having found a verdict in the sum of $ 5,500, and the same having been approved by the trial court, it will not be disturbed in this court.

Error from the United States Court for the Southern District of Indian Territory, Sitting at Ardmore; Hosea Townsend, Judge.

Action by Myra Burgess, joined by her husband, for personal injuries, against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

See ante, p. 110, 95 P. 606.

This action was instituted by Myra Burgess, joined by her husband, W. N. Burgess, as plaintiffs, on the 29th day of February, A. D. 1904, in the United States Court for the Southern District of Indian Territory, sitting at Ardmore, against the Choctaw, Oklahoma & Gulf Railroad Company. Plaintiffs' complaint, omitting the caption and prayer, is as follows:

"Come now the plaintiffs, Myra Burgess and W. N. Burgess, her husband, and state that they, and each of them, are citizens of the United States, residing in the Southern District of the Indian Territory; that the defendant, Choctaw, Oklahoma & Gulf Railroad Company, is a corporation duly organized, existing, and doing business in the Indian Territory under and by virtue of the laws in force in said territory, and as such is authorized and empowered to sue and be sued in its corporate name, Choctaw, Oklahoma & Gulf Railroad Company. That said defendant company now is, and was at all the dates herein mentioned, the owner of and operating a railroad in and through the Indian Territory, and in and between the town of Ardmore in the Southern district and the town of Haileyville in the Central district of said territory, and in, through and between the town of Provence and the town of Mannsville, in said Southern district of the Indian Territory, and at said towns have and maintain depots and stations, and on said railroad run and operated engines and ears for the accommodation and transportation of passengers and freight, and was and is a common carrier of passengers for hire. Plaintiffs allege that heretofore, to wit, on the 1st day of December, 1903, the plaintiff, Myra Burgess, went to the depot and station of said defendant company at the town of Provence, and went aboard the passenger car of said defendant at said station, and became a passenger of said defendant company, for the purpose of being carried and transported from said town of Provence to the said town of Mannsville. That on said day said defendant was running and operating an engine and cars, constituting a passenger train, over said line of railroad between the said town of Provence and the town of Mannville; that said defendant company, by and through its agents and employees, stopped said train at said town of Provence, and this plaintiff, Myra Burgess, attempted to board said train; that at the time she was boarding said train, and had gotten on the steps of one of said cars, the said defendant company, by and through its agents, servants, and employees in charge of said train, carelessly and negligently, and without regard to the safety of this plaintiff, started and moved said train in a quick, rapid, careless, and negligent manner, and thereby threw this plaintiff forcibly and violently upon and against an iron railing upon said car, and upon and against other parts of said car, and thereby severely bruised her left arm above the elbow, bruised and wounded and injured her on the right side of the bowels and just above the pelvis bone, and caused and produced intense agony and suffering; that by reason of such injuries so produced this plaintiff, Myra Burgess, has constantly and continuously ever since suffered and endured great mental injury to and agony in her head, back, bowels, organs of generation, and other parts of her body; that at the time of the infliction of said injuries, as aforesaid, this plaintiff, Myra Burgess, was pregnant, and by reason of said injuries she has been constantly threatened with miscarriage, and has at all times been under the care of a physician. That, by reason of the careless and negligent infliction of said injuries as aforesaid, this plaintiff, Myra Burgess, received a great shock to her nervous system, such as has impaired and will permanently impair her general health, that will shorten her life, and, together with said injuries, will cause her life to be one of continuous suffering and pain. That since the infliction of said injuries as aforesaid, plaintiffs have been compelled to

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