Jones v. Eppler

• Court: Oklahoma Supreme Court
• Writing for the Court: JOHNSON; O'NEAL
• Citation: Jones v. Eppler, 266 P.2d 451, 48 A.L.R.2d 333 (Okla. 1953)
• Decision Date: 08 December 1953
• Docket Number: No. 35375,35375
• Parties: , 1953 OK 363, 1953 OK 364 JONES et al. v. EPPLER.

Page 451

266 P.2d 451

48 A.L.R.2d 333, 1953 OK 363, 1953 OK 364

JONES et al. v. EPPLER.

No. 35375.

Supreme Court of Oklahoma.

Dec. 8, 1953.

Rehearing Denied Feb. 2, 1954.

Syllabus by the Court.

1. Where, in one assignment, error is assigned to all instructions, and any one of the instructions was properly given by the trial court, the assignment will be disregarded.

2. It is the duty of a person injured by the negligence of another to use ordinary and reasonable diligence, or due care, in securing medical and surgical aid after receiving such injury; but one who has been so injured and has exercised due care in securing medical and surgical aid is not bound to undergo anesthetization and major surgery which would necessarily be attended with some risk of failure and of death, but such person must be permitted to exercise the liberty of choice in the matter, and his refusal to submit to the operation, although under the evidence it would probably lessen the effects of the injury, such evidence under such circumstances, cannot be considered in mitigation of the damages recoverable, and, an instruction to that effect is not reversible error.

3. Standard life and annuity tables, if properly established and authenticated, are admissible in evidence in personal injury cases where injuries are claimed to be permanent and the rule applies to permanent partial destruction of earning capacity of person negligently injured.

4. Proper foundation for admission of mortality and annuity tables has been laid where there is some evidence tending to show that the injuries are of a permanent character or where the evidence is conflicting as to whether the injury received was of such character.

5. Instructions which fairly covered issues relating to proper submission and admission of mortality and annuity tables in evidence and evidence of an actuarist in explaining them, were not erroneous.

6. Where suggested probabilities are such as are always counted among the vicissitudes of human life, it may be assumed that a jury will not ignore the natural incidents of life which are common to all mankind.

7. The intelligence and fairness of the jury must be assumed or trial by jury becomes farcical.

8. Where, as in the instant case, it appears that all the assets of an unincorporated trucking business are simply transferred to a newly formed corporation without consideration other than corporate stock issued without payment therefor to the owner and manager of the unincorporated entity, and such corporation has no other assets than those so acquired from the unincorporated business, and the new business, or corporation, is but a continuation of the old and is conducted in the same manner as before, under the same name and managed by the same personnel, the corporation so formed and operated will be liable for the existing debts and tort liabilities of the unincorporated entity as it will be presumed that such liabilities were assumed.

9. Where it is contended that jury's verdict and judgment based thereon is not sustained by the evidence, such contention, on appeal, will be held without merit if there is any evidence, though conflicting, reasonably tending to support such verdict and judgment.

10. Complaint that damages are excessive cannot be sustained by authorities or opinions written several years ago, as we do not consider them as a measure of damage in this time of the devaluated dollar, the higher individual earning capacity, and the modern tendency of allowing much larger verdicts to stand than were permitted a few years ago.

11. In an action for damages for personal injuries sustained, the court will not set a judgment aside because of excessive damages, unless the amount awarded clearly shows that the jury was actuated by passion, partiality, or prejudice.

12. Motion for new trial based upon newly discovered evidence must be verified, and such motion if not verified will not be considered on appeal.

13. Newly discovered evidence to impeach or discredit witnesses is not ground for a new trial.

14. A joint action may be maintained against a motor carrier and its liability insurance bondsmen under the provisions of 47 O.S.1951 § 169.

15. Under liability policy issued to Class B Motor Carrier under permit from Oklahoma Corporation Commission covering injury due to negligence of insured or his employees in 'operation or use' of vehicle, to be within coverage of policy, loss must result from use or operation of licensed vehicle upon highway, but vehicle need not be in actual operation or use upon highway at time loss occurs; it being sufficient if operation or use from which loss occurs has a proximate and necessary connection with actual operation or use of vehicle upon the highway. 47 O.S.1951 §§ 161 to 169.

16. Record examined and held that the jury's verdict and judgment based thereon is sustained by the evidence and is not contrary to law.

Welcome D. Pierson, Oklahoma City, for plaintiffs in error.

Bishop & Driscoll, Seminole, Wallace Hatcher, Pauls Valley, for defendant in error.

JOHNSON, Vice Chief Justice.

The parties herein occupied reverse relative positions in the trial court and will be referred to as they there appeared.

This is an appeal by the defendants from a jury's verdict and judgment for plaintiff for damages for personal injuries in an action brought in the District Court of Garvin County, Oklahoma.

The defendants, for reversal, interpose one hundred eleven assignments of error, which they argue under nine separate propositions.

Under the first proposition defendants assert error of the trial court in instructing the jury. They assert that the issues were few and simple and that the instructions (all of which were excepted to by defendants and exceptions allowed) submitted by the court to the jury in the case at bar are rather lengthy, consisting of 48 separate instructions, comprising 30 pages in the casemade; that in some instances several instructions are given on the same subject, and that the charge of the court to the jury is subject to the criticism outlined by this court in Hanson v. Kent & Purdy Paint Co., 36 Okl. 583, 129 P. 7 (and other cases of similar import) wherein we said:

'Instructions covering 20 pages of the record, in a case where the issues are few and simple, are open to serious criticism, as being too long, tedious, vague, and indefinite. Instructions should be plain, simple, concise, unambiguous, and consistent.'

Even though defendants claim that the issues are few and simple (notwithstanding their numerous assignments of error) the record discloses that they requested 25 separate instructions which consumed 17 pages of the voluminous record, all of which were refused. But the substance of 15 of them was included in the court's instructions, yet defendants only make the general charge that the instructions to the jury were too long, tedious, vague and uncertain, tending to confuse and mislead the average jury. While the instructions were subject to criticism for the reasons urged yet some of the instructions were obviously invulnerable to objections. Where, in one assignment, error is assigned to all instructions, and any one of the instructions was properly given by the trial court, the assignment will be disregarded. Thompson v. Terrill, 186 Okl. 402, 98 P.2d 16, and cases cited therein.

Defendants' second proposition is that the trial court erred in giving instruction No. 39 relating to the failure of plaintiff to submit to a major surgical operation under an anesthetic which might possibly be fatal. The evidence shows that plaintiff sustained injuries to his back, leg and shoulder and a badly shattered fracture of the upper end of the bone of his left arm, and that he was hospitalized and his condition observed over a period of weeks by an orthopedic specialist who was of the opinion that plaintiff should return to the hospital where an operation would be performed on his shoulder, the bones aligned properly and the fragments of bone replaced and the specialist so advised the plaintiff. The plaintiff was also advised that his condition might be greatly improved if he would submit to such an operation, but plaintiff refused the operation.

It was shown by the attending orthopedic specialist that in his opinion plaintiff's disability to his arm and shoulder would have been materially decreased by an operation; that such operations were usually, but not always, successful but that there was always the possibility of it resulting in death.

No complaint is made to that portion of the instruction which advised the jury 'that one cannot recover for damages he could have avoided by the use of reasonable means at his disposal', and that the plaintiff is required to use 'due care in giving himself proper medical and surgical attention', but defendants assert that the probative value of this portion of the instruction was completely destroyed by the conclusion of the instruction wherein the jury was advised 'that plaintiff, Jess Eppler, was not required to submit to a major surgical operation involving the risk of life, however slight, merely in order that the pecuniary interests created by law in his favor, and against the defendants, if any, may be minimized.' Defendants contend that this latter portion of the instruction is erroneous and constitutes reversible error.

The plaintiff used ordinary and reasonable diligence in securing medical and surgical aid after he was injured unless his refusal to submit to a major surgical operation which would generally, but not always improve his condition, and which might result in his death, constitutes lack of ordinary and reasonable diligence or lack of due care.

The law is well settled that it is the duty of a person injured by the negligence of another to use ordinary and reasonable diligence or due care in securing medical and surgical aid after receiving such injury. City of Duncan v. Nicholson, 118 Okla. 275, ...