Colonial Ref. Co. v. Lathrop

• Decision Date: 06 June 1917
• Docket Number: Case Number: 7063
• Citation: 64 Okla. 47,1917 OK 282,166 P. 747
• Parties: COLONIAL REFINING CO. v. LATHROP.
• Court: Oklahoma Supreme Court

1917 OK 282

166 P. 747

64 Okla. 47

COLONIAL REFINING CO. v. LATHROP.

Case Number: 7063

Supreme Court of Oklahoma

Decided: June 6, 1917

Syllabus

¶0 1. Evidence--Photographs--Value. The probative value of photographs depends upon their accuracy. They must be shown by extrinsic evidence to be faithful representations of the place or subject, as it existed at the time involved in the controversy. And photographs taken to show more than this, with men in various assumed positions, and things in various assumed situations, intended only to illustrate hypothetical situations, and to explain certain theories of the parties, are incompetent.

2. Negligence--Contributory Negligence--Pleading as Defense. An answer in an action for personal injuries, which only denies that the injury was caused by the negligence of defendant, and alleges that it was "wholly" caused by the negligence of the plaintiff, is in effect nothing more than a general denial, and does not plead contributory negligence. The law requires the plaintiff to apprise the defendant in the beginning, as to what he relies upon for a recovery, and limits him to the facts pleaded. And it likewise requires the defendant to apprise the plaintiff of any special or affirmative defense he expects to make, by pleading the facts constituting such defense. There is no reason why one should be entitled to the light, and the other required to grope in the dark. Hence contributory negligence, to be available to the defendant, must be specifically pleaded, unless such contributory negligence appears from the allegations of the plaintiff's petition, or unless the plaintiff's own case raises the presumption of contributory negligence.

3. Corporations--Actions--Service of Process.A return of the service of summons, on a domestic corporation, which shows that the president was not found in the county, and that the writ was served upon the managing agent, is sufficient. The statute contemplates that the absence of one officer from the county--"the chief officer"--opens the door for legally serving summons upon any one of the subordinates designated by the statute. It does not contemplate the absurdity of a multiplicity of chief officers, but makes the definite provision that if the one, single, "chief officer is not found in the county," then service may be made upon either the "cashier, treasurer, secretary, clerk, or managing agent."

H. A. King, Reece & Grubbs, Chas, West, and H. H. Hagan, for plaintiff in error.

Robert A. Lowry and T. A. Higgins, for defendant in error.

BRETT, J.

¶1 On February 9, 1914, Marvin Lathrop, the defendant in error, filed suit in the district court of Payne county, against the plaintiff in error, the Colonial Refining Company, a corporation, to recover damages in the sum of $ 10,000 for personal injuries, alleged to have been sustained by Lathrop while in the employ of the said corporation. The parties will be referred to in this opinion as they appeared in the court below: that is, Lathrop, defendant in error, will be referred to as plaintiff, and the Colonial Refining Company will be referred to as defendant. The plaintiff alleged in his petition that he was employed by the defendant as an ordinary day laborer; that while so employed he was ordered and directed by William Fletcher, the defendant's foreman, to go up on the top of a large cylindrical tank to assist another employe in the filling of a five-gallon jug with sulphuric acid, which was to be taken from the tank by means of a bucket and poured into the jug; that the plaintiff did not know of the dangerous character of the acid, and that defendant negligently required him to perform this task without informing him of the dangerous character of the acid; that when the jug was nearly full of the acid, by reason of the oval surface of the top of the tank upon which it was sitting, it commenced to slide, and to prevent it from sliding off the tank and falling to the ground, he seized the jug, and when he seized it, a portion of the acid splashed into his face and eyes, causing him great pain and anguish, and inflicting upon him serious injuries. Summons was duly issued upon the petition, and the defendant made special appearance, and moved to quash the service of summons, which motion was overruled. The defendant subsequently filed its amended answer, which consisted first of a general denial, then a special denial that William Fletcher was a vice principal, pleaded the assumption of risk, and closed by pleading-- "that whatever injuries, if any, were sustained by plaintiff herein were not in any manner caused by the negligence of this defendant, but such injuries claimed to have been sustained by plaintiff were caused solely and only by negligence, carelessness, and want of care of plaintiff herein, and the defendant is in no manner liable therefor." Plaintiff replied by a general denial. Upon the pleadings thus framed the cause went to trial, and resulted in judgment for plaintiff in the sum of $ 2,000, from which judgment the defendant appeals to this court. There are a number of errors assigned, but there are only three that are urged and relied upon. The first assignment urged is directed against the refusal of the court to quash the service of summons, the second complains of the court's refusal to instruct the jury upon contributory negligence, and the third complains of the refusal of the court to admit in evidence certain photographs. We will discuss these assignments in their inverse order. 1. The photographs offered in evidence, and which the court refused to admit, showed a man standing in assumed positions upon the tank upon which the plaintiff is alleged to have received his injuries, and each picture in addition also showed a jug sitting in different positions on the tank. The court had already admitted in evidence one photograph, showing the size, shape, and surroundings of this particular tank; but we think properly refused to admit in evidence these pictures, which were intended to illustrate a hypothetical situation, and to explain the theory of the defendant as to how the injuries complained of might have occurred. The picture showing the size, shape, and surroundings of this tank was competent; but the picture showing a man standing in assumed positions, and jugs placed in various assumed situations, serving merely to illustrate certain theories of the defendant as to how the accident might have happened, were incompetent, and, when objected to by plaintiff, were properly excluded. In Stewart v. St. Paul R. Co., 78 Minn. 110, 80 N.W. 855, the court, in speaking of the probative value of photographs, says:

"Their value depends upon their accuracy. They must be shown by extrinsic evidence to be faithful representations of the place or subject, as it existed at the time involved in the controversy."

¶2 In Babb v. Paper Co., 99 Me. 298, 59 A. 290, the court says:

"To be admissible, photographs should simply show conditions existing at the time in question. But photographs taken to show more than this, with men in various assumed postures, and things in various assumed situations, in order to illustrate the claims and contentions of the parties, should not be admitted. An examination of the excluded photographs shows that they fall within the latter class. They would serve merely to illustrate certain theories of the defendant as to how the accident happened." 9 Enc. of Evid. 779.

¶3 But the defendant cites Smith v. Territory, 11 Okla. 669, 69 P. 805, in support of its contention that these photographs should have been admitted. But that case is not in point. There the court held that photographs of the deceased, taken after death, and which were shown by extrinsic evidence to correctly show the exact location of the wounds and the course of the bullet which produced death were admissible on the theory that the photographs did correctly represent the location, nature, and character of the wounds. And that holding is correct, and is not in conflict with anything we have said, but is based upon facts very different from the facts in the case at bar, where the photographs did not purport to represent the exact conditions under which the plaintiff was injured, but only to illustrate a hypothetical situation. In St. L. & S. F. R. Co. v. Dale, 36 Okla. 114, 128 P. 137, the pictures offered and admitted in evidence to show the topography of the country, the length and extent of the ditches in controversy, the timber and other permanent surroundings, were taken months subsequent to the time the damage was alleged to have been sustained, yet they were shown by extrinsic evidence to be faithful representations of the topography of the country, the ditches and other permanent surroundings, as they existed at the time involved in the controversy. The most that could be claimed in the case at bar is that it was within the discretion of the court as to whether or not these pictures should be admitted. And even upon that hypothesis it cannot be said the court abused its discretion. 2. The next assignment we shall notice is that the court erred in refusing to instruct the jury upon contributory negligence. The defendant in its brief says:

"It will be recollected that the answer raised the defense of contributory negligence, alleging: 'Further answering, defendant says that whatever injuries, if any, were sustained by plaintiff herein were not in any manner caused by the negligence of this defendant, but such injuries claimed to have been sustained by plaintiff were caused solely and only by negligence, carelessness, and want of care of plaintiff herein, and the defendant is in no manner liable therefor.'"

¶4 But the sufficiency of this paragraph as a plea of contributory negligence is specifically challenged by the plaintiff. And this presents the question squarely, Does this paragraph of the answer plead contributory negligence? We think not. It is, in effect, only another denial of any and...