City of Tulsa v. Harman

• Decision Date: 10 March 1931
• Docket Number: Case Number: 19774
• Citation: 148 Okla. 117,1931 OK 73,299 P. 462
• Parties: CITY of TULSA v. HARMAN.
• Court: Oklahoma Supreme Court

1931 OK 73

299 P. 462

148 Okla. 117

CITY of TULSA v. HARMAN.

Case Number: 19774

Supreme Court of Oklahoma

Decided: March 10, 1931

Syllabus

¶0 1. New Trial--Trial Court Required to Indicate Grounds of Ruling on Motion.

Where the trial court has been timely requested to indicate what grounds of the motion for a new trial were sustained and which were overruled, the trial court should comply with the request.

2. Negligence--Duty to Keep Premises Safe for Invitees.

The duty to keep premises reasonably safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care.

3. Same--Risks Assumed by Invitee.

The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care.

4. Negligence--When Question for Court.

The question of negligence or no negligence is one of law for the court, where but one inference can reasonably be drawn from the evidence.

5. Same--Failure to Show Primary Negligence.

Where plaintiff fails to show primary negligence or breach of duty on the part of defendant, the judgment should be for defendant.

6. Same--Personal Injuries.

A demurrer to plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent that the injury suffered by the plaintiff is the causal effect from some wrongful act of the defendant, in violation of a legal duty owing to the plaintiff.

Error from District Court, Tulsa County; John Ladner, Judge.

Action by Lois Lee Harman against the City of Tulsa. Verdict for defendant. New trial granted on motion of plaintiff. Defendant appeals. Reversed, and remanded, with directions.

M. C. Spradling, City Atty., Eben L. Taylor, Felix A. Bodovitz, Asst. City Atty., Eldon J. Dick, and E. M. Gallaher, for plaintiff in error.

A. F. Moss, H. R. Young, and C. A. Warren, for defendant in error.

SWINDALL, J.

¶1 This action was originally commenced in the district court of Tulsa county by Lois Lee Harman against the city of Tulsa to recover damages because of the death of her husband, William Gilbert Harman, alleged to have been caused by and through the negligence of the defendant. The trial was to a jury, resulting in a verdict in favor of defendant. Hereafter the defendant in error will be referred to as plaintiff, and the plaintiff in error as defendant, this being their position in the trial court.

¶2 On motion of plaintiff the trial court set aside the verdict and granted a new trial. At the time of granting the new trial, counsel for defendant requested the court to state upon which of the statutory grounds the new trial was granted. This, the trial court refused to do, stating that: "From the whole record in his opinion such action should be taken."

¶3 The several grounds of the motion for new trial are as follows:

"(1) The verdict of the jury is not sustained by sufficient evidence.

"(2) The verdict of the jury is not sustained by any evidence.

"(3) That the verdict of the jury is contrary to the evidence.

"(4) That the verdict of the jury is contrary to law.

"(5) Errors of law occurring at the trial and excepted to at the time by the plaintiff.

"(6) That the court erred in giving to the jury the following numbered instructions, and each of them, to wit: Nos. 7, 9, 10, 13, 17, and 18, and to the action of the court in giving each of said instructions the plaintiff at the time duly and lawfully objected and excepted.

"(7) Misconduct of counsel for the defendant in arguing to the jury that the negligence of the operator of the boat, McCall, must be imputed to the deceased in the event that the deceased, or any other person riding in said boat aside from the operator of the boat, directed the operator of the boat to transport the deceased and his associates to the other or south side of the lake.

"(8) Error of the court in refusing to sustain the objection of the plaintiff to the aforesaid argument upon the part of counsel for the defendant.

"(9) Error of the court in refusing, because of said improper argument of counsel, to discharge the jury and declare the trial a mistrial."

¶4 Our Code of Civil Procedure was adopted from Kansas, and the first eight statutory grounds are indentically the same as provided for in the Kansas Code.

¶5 The Supreme Court of Kansas, in Bourquin v. Missouri P. Ry. Co., 127 P. 770, held that:

"Where a motion for a new trial on all the statutory grounds has been sustained generally, this court on appeal will assume, in support of the ruling, that the trial judge was not able to reconcile the verdict with what he regarded as the true weight of the reliable testimony."

¶6 If our court had followed the rule announced by the Supreme Court of Kansas, it would not be difficult to review this appeal; however, this court, in James v. Coleman, 64 Okla. 99, 166 P. 210, laid down a different rule, and held that:

"Upon an appeal from such order, the court will review the entire record, and if the order was properly made, even though a wrong reason was given therefor, the same will be sustained."

¶7 We are certain that the trial court did not sustain the motion for a new trial on each of the several grounds stated in the motion.

¶8 In Bourquin v. Missouri P. Ry. Co., supra, the Supreme Court of Kansas further announced the law that:

"A motion for a new trial on several grounds is, in effect, a separate motion on each ground, and the better practice would be for the trial court, when sustaining such a motion, to state frankly on the record the specification or specifications which are upheld and those which are overruled."

¶9 This court, in Hall v. Polson, 130 Okla. 136, 265 P. 1068, in an opinion delivered by Mr. Justice Riley, said:

"As we view it, the trend of the decisions of this court has been too broad as applied to motions for new trial in law actions, where a jury passes upon disputed facts, and where there is a conflict in the evidence; moreover, when such a motion is sustained, we think it far better practice on the part of the trial court to state in the record the ground upon which the court sustains or overrules such a motion."

¶10 This is in harmony with the holding of the Supreme Court of Kansas in Bourquin v. Missouri P. Ry. Co., supra. Later the Supreme Court of Kansas, in Hughes v. Vossler, 110 Kan. 279, 203 P. 1107, following the suggestion made in the former decision, held that:

"If the trial court had been timely requested to indicate what grounds of the motion for a new trial were sustained and which were overruled, the trial court should have complied."

¶11 In the case at bar, the trial court was timely requested to state upon which of the several grounds of the motion for new trial the same was sustained, and the court refused the request.

¶12 We are of the opinion the trial court should have granted the request. The Code of Civil Procedure of this state grants a litigant the right of appeal from an order granting a new trial. Counsel for a litigant has the right to know upon which one or more of the several grounds of the motion for a new trial the same was sustained, and we can see no good reason for the trial court refusing to state frankly on the record the specification or specifications which are upheld and those which are overruled; then counsel could easily determine, whether or not he desired to appeal from the ruling or retry the issues. If an appeal is taken from the order granting a new trial under such procedure, the labors of this court would be materially reduced. Also, the movant might desire to file cross-specifications of error and urge that the motion should have been sustained upon grounds which are overruled and thus simplify the issues materially in the event a new trial is ordered.

¶13 The plaintiff, at page 16 of her brief, says:

"There is evidence in the case at bar that warrants the submission of this case to the jury."

¶14 Again, at page 19:

"It is true that the trial court refused to submit to the jury the issue of whether McCall was authorized by the defendant to carry passengers for hire, as an agent of the defendant, and under the evidence in the record we think the court was right. However, the court did properly submit to the jury the issue raised of whether the defendant was negligent in failing to erect barriers or guards or post signals or warnings, or in some other manner protect the deceased, its invitee."

¶15 If there is evidence in the case, as claimed by plaintiff, that warrants the submission of this case to the jury, and the court did properly submit to the jury the issues that should have been submitted, this is all the plaintiff was entitled to upon her theory of the case.

¶16 This court, in C., R. I. & P. Ry. Co. v. Zobisch, 118 Okla. 193, 247 P. 351, said:

"We are not unmindful of the fact that this court is slow to disturb the judgment of the trial court in granting a new trial. A party is entitled to have his day in court; both parties are entitled to this, but neither party is entitled to have more than one fair, reasonable opportunity to establish his claim or defense. To allow more would be to protract litigation to an extent which would preclude the administration of justice."

¶17 In Euclid Avenue State Bank v. Nesbit, 204 N.W. 253, the Supreme Court of Iowa, in passing upon this subject, said:

"We are constrained to hold that in any case where the trial court grants a motion or sets aside a verdict, or for a new trial on its own motion, he ought, at least on request of the party against whom the rule is made, state or record the facts which moved him to act, and failure so to do

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