Empire Oil & Ref. Co. v. Fields

• Decision Date: 26 November 1940
• Docket Number: Case Number: 28791
• Citation: 1940 OK 471,112 P.2d 395,188 Okla. 666
• Court: Oklahoma Supreme Court
• Parties: EMPIRE OIL & REFINING CO. et al. v. FIELDS

1940 OK 471

112 P.2d 395

188 Okla. 666

EMPIRE OIL & REFINING CO. et al. v. FIELDS

Case Number: 28791

Supreme Court of Oklahoma

Decided: November 26, 1940

Syllabus

¶0 1. APPEAL AND ERROR--TRIAL--Proper scope for judge's comments and remarks during trial.

A trial judge should refrain from any comments during the conduct of a trial in the presence of the jury as to the merits of the case or the truth or falsity of the testimony, and he should refrain from making any unnecessary remarks or admonitions to counsel which may tend to a result prejudicial to a litigant or influence the minds of the jury on the merits of the action, but he may use such measures as may be necessary to maintain the dignity of the court and rebuke the impropriety or misconduct of counsel, and no comment or remark of the judge will be ground for reversal where the substantial rights of plaintiff in error have not been violated.

2. SAME--Prejudicial error in judge's conduct and remarks not shown.

Record examined, and held not to show a miscarriage of justice or a substantial violation of the constitutional or statutory rights of the plaintiff in error by reason of conduct and remarks of the trial judge.

3. APPEAL AND ERROR--Sufficiency of evidence to support verdict and judgment.

A judgment based on the verdict of a jury in a law action will not be disturbed by this court on appeal if there is any competent evidence reasonably tending to support the same.

4. APPEAL AND ERROR-- Harmless error--Inaccurate or incomplete instruction.

Where an instruction given is not entirely accurate or is incomplete, but it does not appear that the jury was misled thereby, a judgment will not be reversed on account of such instruction.

5. SAME--Duty of counsel to request supplemental instruction covering his theory of case.

Where an instruction is correct so far as it goes, and it is urged by the defendant that under his theory of the case additional instructions should have been given, reversal will not be had unless a supplemental instruction is requested by such defendant embodying such theory.

6. TRIAL--Sufficiency of instructions--Refusal of requests.

When the instructions given fairly state the law to be applied in a case, it is not error for the court to refuse the requested instructions.

7. SAME--Instructions properly refused if not supported by competent evidence.

It is not error for the court to refuse instructions which are not supported by competent evidence.

8. SAME--Refusal of instructions covered by instructions given.

It is not error to refuse instructions regarding matters substantially covered by the instructions given.

9. EVIDENCE--Inadmissibility of photographs intended merely to demonstrate certain theories of parties.

Photographs showing persons and things in various assumed positions, intended only to illustrate hypothetical situations, and to demonstrate certain theories of the parties, are incompetent, and it is not error to exclude such photographs from evidence.

10. APPEAL AND ERROR--Harmless error in rejection of evidence.

A cause will not be reversed for error in the rejection of evidence where it does not appear to the court, after an examination of the entire record, that the error complained of has probably resulted in a miscarriage of justice.

11. APPEAL AND ERROR--Subsequent appeals--Law of case.

A decision of this court upon questions of law on a former appeal between the same parties concerning the same subject-matter becomes the law of the case and is ordinarily controlling in this court upon a subsequent appeal.

12. APPEAL AND ERROR--Verdict for $25,000 for personal injuries held excessive to extent of $5,000 and remittitur required.

Under the. record herein, a verdict for $25,000 is grossly excessive to the extent of $5,000, and the judgment should be set aside and a new trial granted unless a remittitur for all in excess of $20,000, with interest thereon, is filed within a given time.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action by Della Fields against the Empire Oil & Refining Company, now known as Cities Service Oil Company, and another. Judgment for plaintiff, and defendants appeal. Affirmed on condition of remittitur.

A. C. Hough, of Oklahoma City, and R. E. Cullison, of Bartlesville, for plaintiffs in error.

W. P. Morrison and John Morrison, both of Oklahoma City, for defendant in error.

HURST, J.

¶1 This is the second time this case has been appealed to this court. Della Fields sued R. C. Ketzler and the Empire Oil & Refining Company, now known as Cities Service Oil Company, to recover damages for personal injuries claimed to have resulted from being shot in the back of the head by Ketzler while he was acting as a special officer or investigator of the oil company. Although the wound itself is trivial, plaintiff claimed that the shock caused her to have a miscarriage and that as a result of such miscarriage she suffered permanent injury to her female organs. She recovered a verdict for $25,000 at the first trial, and defendants appealed to this court. The judgment was reversed and remanded for a new trial on the ground that there was no medical testimony tending to show that the derangement of plaintiff's female organs resulted from the miscarriage or the shock, and the court erred in instructing the jury on this issue. Empire Oil & Refining Co. et al. v. Fields, 181 Okla. 231, 73 P.2d 164. After the first trial and while the cause was pending in this court on appeal, plaintiff was subjected to an operation, and she amended her petition to allege that by reason thereof she has become sterile and has reached a premature menopause which has rendered her a permanent invalid and caused her a great deal of pain and suffering. Upon the second trial of this case, a verdict in the sum of $25,000 was again rendered in favor of plaintiff, and the defendants bring this appeal.

¶2 There are certain undisputed facts which appear to be substantially the same as those recited in the former opinion as having been established in the first trial. About 9 o'clock in the evening of July 1, 1933, plaintiff and her husband and small child drove their car to a point adjacent to a park outside the city of Seminole near the property of the Empire Company and parked. Across the road from the park was the home of one Mike Plummer. Plaintiff's husband had driven the car past Plummer's house, then turned around and stopped almost directly opposite it. Plummer came out, spoke to plaintiff's husband, and then went over into the park and got a fivegallon can of gasoline which had been hidden behind some rocks and started to take it to plaintiff's husband's car. Plummer testified that he did not know who owned the gasoline, but had seen someone hide it there that afternoon. Ketzler and another special officer were hiding nearby and when Plummer had taken the gasoline they apprehended him. Upon hearing the commotion, plaintiff's husband started to drive away, and Ketzler fired his gun in an effort to halt the car. Ketzler says he fired a sawedoff shotgun into the air. Plaintiff's witnesses say he fired a Winchester rifle directly at the car. Plaintiff says that as her husband drove off she looked back and saw the flash of Ketzler's gun, and then something struck her in the back of the head. The wound itself was simply a superficial skin wound, at most about an inch long and the width of a lead pencil. The claim for damages is based upon alleged shock and fright and injuries resulting therefrom.

¶3 We will treat the evidence in detail when necessary for a determination of the many questions raised on appeal.

1. Defendants contend that they were prevented from having a fair trial because of the misconduct of the trial judge. Under various propositions and at various places throughout their briefs they refer to the remarks and conduct of the judge. The only authorities cited are the line of cases holding that the trial judge should refrain from commenting on, or indicating an opinion in the presence of the jury as to, the merits of the case or the truth or falsity of the testimony. See City of Newkirk v. Dimmers, 17 Okla. 525, 87 P. 603; Settle v. Crawford, 155 Okla. 291, 9 P.2d 38; FolsomMorris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512; Sawyer v. Brown, 108 Okla. 265, 236 P. 404; Pressly v. Incorporated Town of Sallisaw, 54 Okla. 747, 154 P. 660.

(a) The only direct comment on the evidence which we find to have been made in the presence of the jury, except remarks made in connection with sustaining objections, hereinafter discussed, came about as follows: A witness who drove Ketzler and Plummer to jail after the shooting incident involved herein testified as to his reason for being there at that time, and defendants sought to show that he contradicted his testimony on the former trial as to this reason. Plaintiff sought to show that this contradiction was probably due to a stenographic error in the record of the former trial. On examining the present reporter, counsel for defendants asked if he ever knew the former reporter to make a mistake before. The judge then said:

"Oh, every one of them make mistakes. You lawyers all know that. There is no use trying to kid us here, now. If a reporter is infallible, we judges are angels. Let's get on. They are all good reporters, every one."

¶4 But even though such comment is improper, in view of section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068, it cannot warrant reversal unless it violated a substantial right of defendants or "probably resulted in a miscarriage of justice." The matter here complained of is very trivial. The statement made is one of common knowledge, which the jury would know anyhow, and it is so qualified that we fail to see how any prejudice could have resulted therefrom. It therefore will not justify granting a new trial in this case.

¶5 In this same connection defendants complain of the questioning by the court of one of their witnesses as...