Keispert v. Williams

• Decision Date: 12 November 1958
• Docket Number: No. 38191,38191
• Citation: 333 P.2d 514
• Parties: Edward KEISPERT and Earnest Keispert, Individually and as partners, d/b/a Keispert Food Market, and Hallie Grover Nix, Plaintiffs in Error, v. William Lee WILLIAMS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 514

333 P.2d 514

1958 OK 270

Edward KEISPERT and Earnest Keispert, Individually and as

partners, d/b/a Keispert Food Market, and Hallie

Grover Nix, Plaintiffs in Error, v. William Lee WILLIAMS, Defendant in Error.

No. 38191.

Supreme Court of Oklahoma.

Nov. 12, 1958.

Rehearing Denied Dec. 16, 1958.

Syllabus by the Court

1. Where plaintiff sued defendants for damages he allegedly suffered as a result of the collision, on a city street, of his vehicle with a panel truck owned and operated by defendants; and, at the trial, each of the opposing parties relied upon the claimed negligence of his or their opponent's driver in violating different portions of a city ordinance; and agreed, at least tacitly, that the ordinance provisions would be 'a matter of instructions to the jury'; and plaintiff obtained leave to amend his pleadings to plead that part of the ordinance he relied upon; and the court thereafter copied verbatim the sections of the ordinance involved, into its Instruction No. 9, without previous objection thereto, or any subsequent claim that the ordinance was not truly and accurately reflected therein; in defendants' present appeal from a verdict and judgment for plaintiff, their argument that the trial court erred in giving said instruction because the ordinance was not pleaded or proved, presented no just cause for reversal.

2. Where one portion of sec. 97 of the ordinance, above referred to, applied only to streets 'with unobstructed pavement of sufficient width for four or more lanes of moving traffic * * *', but the pavement of the street, where the collision occurred, was not that wide, the trial court's failure to omit that portion of the ordinance from said Instruction was not cause for reversal, under the circumstances, and where a provision, which appeared in the section following the one complained of as inapplicable, appeared to be applicable to a condition of the street which an undisputed portion of the testimony tended to prove.

3. Upon commission of a tort, the tort-feasor is liable to the victim of his tort for damages therefrom, irrespective of the latter's receipt of compensation from a collateral source.

4. There is no fixed rule, or standard, by which damages for pain and suffering can be measured and the amount of such an award must be left to the jury, subject to correction by courts for abuse and passionate exercise.

Appeal from District Court of Oklahoma; Glen O. Morris, Judge.

Action by plaintiff, driver of a three-wheeled motorcycle, for damages for injuries resulting from said vehicle's collision with a panel truck owned and operated by defendants. From a verdict and judgment for plaintiff, defendants appeal. Affirmed.

Dudley, Dudley & Dudley, Oklahoma City, for plaintiffs in error.

Melvin F. Pierce, Pierce, Mock & Duncan, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

Defendant in error, herein referred to as plaintiff, is an Oklahoma City traffic policeman. He was injured when the 3-wheeled motorcycle, he was driving collided in the 2500-block on South Western Avenue, in Oklahoma City, with a panel truck, driven by the plaintiff in error, Nix, an employee of the truck's owners, the plaintiffs in error, Edward and Earnest Keispert.

On the theory that said truck driver's negligence caused the accident, said plaintiff sought recovery in this action against Nix and said Keispert Brothers, d/b/a Keispert Food Market (hereinafter referred to as defendants), of $198.00 for hospital and medical expenses already incurred, $200.00 he alleged would be incurred in future medical bills, and the sum of $10,000.00 for physical and mental suffering and loss of time and impairment of his earning capacity, allegedly resulting from the accident. Plaintiff obtained a general verdict and judgment in the sum of $4500.00 and defendants perfected this appeal.

At the trial, the undisputed evidence disclosed that, when the accident occurred, defendants' truck had been headed north on Western Avenue and was turning west in front of southbound traffic on the western side of said street, in an attempt to enter an alley which extended along the Keispert Food Market building's south side. A Mr. Nolan Dean, who was driving in the lane for southbound traffic nearest defendants' truck, had stopped his car and motioned Nix to turn the truck west across said lane, in front of him, but, as Nix did so, plaintiff's motorcycle came alongside Dean's car and hit the truck on its right, or north, side near the right front door. It was one of plaintiff's theories that, in making the left turn across the western side of Western Avenue, in front of southbound traffic on said street, Nix, defendants' truck driver, was guilty of negligence in violating certain traffic rules enacted into law by Oklahoma City ordinance. Likewise, defendants claimed plaintiff was guilty of negligence in violating certain other traffic rules, which are said, without contradiction, to be different parts of the same city ordinance. The ordinance involved is 'Ordinance 5791.'

Upon consideration of the opposing parties' respective positions in this appeal, the crucial provision of said ordinance, as far as concerns plaintiff's claim of defendants' negligence, is found in Tit. 9, sec. 56 of said ordinance, and reads, in material part, as follows:

'No vehicle * * * shall turn to the left when going into * * * an alley, nor shall such vehicle * * * cross any street * * * when going into * * * an alley; * * *

'The driver of any vehicle intending to make a left turn across the street * * * in entering * * * any driveway or entranceway * * * shall first yield the right-of-way to any other traffic proceeding on the street which is near enough to constitute an immediate hazard, and in no event shall the driver make, or attempt to make, such left * * * turn where such turn would or does interfere with the normal movement of, or delay, or block other traffic using the street.'

As far as concerns defendants' claim of plaintiff's negligence in passing the Dean car on its right side and thus assertedly being, with his motorcycle, in a place where he had no lawful right to be, at the time of the collision, the most pertinent part of the ordinance is found in Tit. 17, sec. 95(1) thereof, as follows:

'The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance and shall not again drive to the right side of the street or roadway until safely clear of the overtaken vehicle.' (Emphasis ours.)

Some of the evidence introduced on behalf of the plaintiff, and particularly portions of his own testimony, indicated an effort to bring his right-side passing of Dean's car within the emphasized portions of Tit. 17, sec. 97, which reads in part, as follows:

'* * * The driver of vehicle may overtake and allowing sufficient clearance pass another vehicle proceeding in the same direction either upon the left or upon the right of a street * * * with unobstructed pavement of sufficient width for four or more lanes of moving traffic when such movement can be made in safety. No person shall drive off the pavement or upon the shoulder of the street or roadway in overtaking or passing on the right.' (Emphasis ours.)

Into his Instruction No. 9 to the jury, the trial judge copied all parts of the abovecited sections of Ordinance 5791, and his doing so, is the error referred to in Proposition I of defendants' brief. They therein assert that this ordinance 'was not pleaded and proved.' We find insufficient merit in this proposition of error, and, in view of what the record shows concerning the procedure at the trial, and the position assumed by the respective parties, defendants' argument relative thereto demonstrates no ground for reversing the trial court's judgment. Our examination of the casemade does not support defense counsel's claim that the above quoted sections were not pleaded; and--as to their proof--albeit the record contains no such ordinance, or copy thereof, labeled as an exhibit, among those introduced at the trial, we think this is of no material significance under the particular circumstances of this case. As plaintiff's counsel points out, identification of pertinent city ordinances for introduction into the evidence was waived at the pre-trial conference; and the court reporter's transcription as to what occurred at the trial, with reference to their introduction into evidence, is as follows:

'Mr. Dudley: The defendants would like to offer in evidence, and it is plead in the answer, Title 17, section 95, of the Oklahoma City ordinances.

* * *

* * *

'Mr. Duncan: I want the entire applicable ordinance offered, the whole ordinance.

'Mr. Dudley: We agreed on the ordinances.

'The Court: There is no use to get the part that is not applicable.

'(Thereupon a further conversation was had between counsel and the court at the court's desk regarding the city ordinances).

'The Court: Well, you agreed as to the ordinances at the pretrial.

'Mr. Dudley: Well, I will read the ordinance. 'Title 17, Section 95, Oklahoma City Ordinances--' (interrupted)

'Mr. Duncan: Just a minute, Your Honor, we don't have to read these ordinances. They will be a matter of instructions to the jury. I didn't read mine.

'The Court: No, they will be in the instructions.

'(Thereupon counsel approached the court's desk and a conference was had by counsel with the Court).'

The record then reveals that the trial was briefly recessed, and that immediately after the recess, the following occurred:

'...