City of Norman v. Lewis

• Decision Date: 25 May 1937
• Docket Number: Case Number: 26735
• Citation: 1937 OK 321,180 Okla. 344,69 P.2d 377
• Parties: CITY OF NORMAN v. LEWIS
• Court: Oklahoma Supreme Court

1937 OK 321

69 P.2d 377

180 Okla. 344

CITY OF NORMAN v. LEWIS

Case Number: 26735

Supreme Court of Oklahoma

Decided: May 25, 1937

Syllabus

¶0 1. APPEAL AND ERROR - Sufficiency of Evidence - Conclusiveness of Verdict Where Defendant Failed to Renew Demurrer to Evidence or to Request Instructed Verdict.

When a defendant demurs to the evidence in chief of plaintiff and thereafter introduces evidence and fails to renew his demurrer to all of the evidence or to request an instructed verdict and permits the issues joined to be submitted to the jury upon all the evidence without objection and exceptions, the verdict, on review in this court, is conclusive in so far as such evidence is concerned, except as to excessive damages appearing to have been given under the influence of passion or prejudice.

2. APPEAL AND ERROR - Trial - Discretion of Court as to Permitting View of Premises by Jury.

Whether a view of the premises by the jury should be permitted is a matter resting largely in the sound discretion of the trial court, and its rulings with respect thereto will not be disturbed by this court in the absence of a showing of an abuse of such discretion.

3. MUNICIPAL CORPORATIONS - Right to Waive Defects in Summons and Enter Appearance to Contest Action.

A municipal corporation may waive defects in a summons and enter its general appearance and contest an action with the same effect as if it had been properly served in the first instance.

4. APPEAL AND ERROR - Action for Personal Injuries - Conclusiveness of Verdict as to Amount of Damages.

In an action for personal injuries, the jury is charged with the duty of fixing the amount of damages, and its verdict will not be set aside as excessive unless it clearly appears that the jury committed some gross and palpable error or acted under some improper bias, influence, or prejudice. Ponca City v. Swayne, 174 Okla. 576, 50 P.2d 1082.

5. APPEAL AND ERROR - Requisites of Brief Where Instructions Complained of.

Where a party complains on account of instructions given, but fails to set out in totidem verbis in his brief separately the portions to which he objects or may save objections, the same will not be reviewed on appeal here. Holmes v. Evans, 29 Okla. 373, 118 P. 144.

Appeal from District Court, Cleveland County; Tom P. Pace, Judge.

Action by O.W. Lewis against the City of Norman. Judgment for plaintiff, and defendant appeals. Affirmed.

T. Jack Foster, for plaintiff in error.

Sylvester Grim, Ben F. Williams, Homer Cowan, and T.R. Benedum, for defendant in error.

PER CURIAM.

¶1 This is an appeal from a judgment of the district court of Cleveland county. The action was instituted by O.W. Lewis, hereinafter referred to as plaintiff, against the city of Norman, a municipal corporation, hereinafter referred to as defendant, to recover damages for personal injury alleged to have been sustained as a result of negligence of the defendant in the maintenance of a sidewalk. Defendant did not question the sufficiency of the petition in any manner, but answered by general denial and a plea of contributory negligence. Without objection to the introduction of any evidence under the petition, the defendant proceeded to trial before a jury. At the close of plaintiff's evidence defendant demurred thereto, but when its demurrer was overruled proceeded to offer evidence in its defense and did not thereafter renew its demurrer or request a directed verdict in its favor. The jury returned a verdict in favor of the plaintiff and fixed his recovery at the sum of $5,000. The record discloses that the city attorney who prepared the pleadings and represented the defendant at the trial of the cause was succeeded in office by the present attorney, who is prosecuting this appeal. Defendant assigns 10 specifications of error which are presented under seven general propositions. These may be summarized as follows:

(1) Primary negligence was neither plead nor proved.

(2) Under the evidence negligence, if any, became a question of law.

(3) Refusal of the court to permit the jury to view the premises was error.

(4) View of the premises by the court constituted error.

(5) Jurisdiction of the person of defendant was not acquired.

(6) Damages awarded were excessive and given under the influence of passion or prejudice.

(7) Instructions given were erroneous.

¶2 Under the first two contentions defendant seeks to invoke the rule of law announced and applied by this court in the cases of Oklahoma City v. Banks, 175 Okla. 569, 53 P.2d 1120; City of Tulsa v. Frye, 165 Okla. 302, 25 P.2d 1080; City of Ada v. Burrow, 171 Okla. 142, 42 P.2d Ill; Smith v. City of Tulsa, 172 Okla. 515, 45 P.2d 689, and the cases therein cited and discussed. In this contention defendant seeks a review of the sufficiency of the evidence. Since defendant, after its demurrer to the evidence of the plaintiff in chief was overruled, introduced evidence in support of its defense and failed to renew its demurrer or to request a directed verdict in its favor, we cannot entertain either one of the first two contentions advanced by the defendant. See Hinshaw v. Brannon, 163 Okla. 225, 22 P.2d 74; Local Bldg. & Loan Ass'n v. Hudson-Houston Lbr. Co., 150 Okla. 44, 3 P.2d 156; Stout v. Idlett, 161 Okla. 23, 16 P.2d 1088.

¶3 Whether a jury should be permitted to view the premises which may be involved in an action is a matter...