Lisle v. Anderson

• Decision Date: 24 January 1916
• Docket Number: Case Number: 4785
• Citation: 1916 OK 92,61 Okla. 68,159 P. 278
• Parties: LISLE et al. v. ANDERSON.
• Court: Oklahoma Supreme Court

1916 OK 92

159 P. 278

61 Okla. 68

LISLE et al. v. ANDERSON.

Case Number: 4785

Supreme Court of Oklahoma

Decided: January 24, 1916

Syllabus

¶0 1.Negligence--Pleading--Complaint.In every case involving actionable negligence, there are of necessity three constituent elements to its existence: First, the existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains; second, the failure of the defendant to perform that duty; third, injury to the plaintiff resulting from such failure of the defendant; and when a petition affirmatively shows these three elements, it is good as against a demurrer.

2.Trial--Taking Case From Jury -- Demurrer to Evidence.Where the evidence is sufficient to reasonably tend to support the allegations of a petition that states a cause of action, a demurrer to such evidence should be overruled.

3.Negligence -- Ordinary and Reasonable Care.Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehend that, as the natural and probable consequences of his act, another person, rightfully there, will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises; and, if such care is not exercised by the party on whom the duty rests and injury to another person results therefrom, liability on the part of the negligent party to the person injured will generally exist, in the absence of any other controlling element or fact, and this, too, without regard to the legal relationship of the parties.

4.Same -- School Building -- Independent Contractor.Where the defendants had a contract with a school board to erect a school building complete save a heating and ventilating system, and the company for whom the plaintiff was working had a contract with the said school board for installing the said heating and ventilating system, and the defendants and the company for whom the plaintiff was working were each at the same time carrying out their respective contracts with the school board, and the defendants, under and by virtue of the terms of their contract, were to furnish and install joists in the attic of said school building, upon which a tank that was to be a part of the heating and ventilating system was to be placed by the plaintiff, and the defendants knew that this was one of the purposes for which the said joists were to be used, and after the defendants had selected and installed the said joists in said attic, but before said defendants had fully completed their contract with said school board and turned the building over to the school board, the plaintiff, in installing the said tank, went upon said joists, and one of the joists broke, and as a result thereof the plaintiff fell and was injured held, that if the defendants knew, or by the exercise of ordinary care could have known, that the plaintiff might be reasonably expected to go upon the joists in installing the tank, the defendant owed the plaintiff the duty to exercise ordinary care in the selection of said joists, although the relation of master and servant did not exist.

5.Sunday--Injuries Received While Violating Sunday Law.The fact that the plaintiff was injured on Sunday, while at work in violation of the Sunday law of the state of Oklahoma, is not a bar to a recovery.

6.Judgment -- Conclusiveness--Finality--Order Sustaining Demurrer.When a demurrer to the plaintiff's petition is sustained and the court, by its order duly entered upon the record, allows the plaintiff a certain time in which to make his election as to whether or not he will stand upon the sufficiency of his petition, and the plaintiff, before the expiration of the time in which he is required to make such election, files a motion to dismiss the cause without prejudice, and the court sustains the motion and makes an order dismissing the cause without prejudice, the order sustaining the demurrer is not such a final adjudication as will defeat another action between the same parties in another court on the same facts as set out in the petition to which the demurrer was sustained.

7.Release--Covenant Not to Sue.An instrument, executed to a joint tortfeasor in the following language: "I do agree and covenant that I shall never institute or prosecute any suit on account of my said injuries against said * * * L * * * and * * * K, or either of them," etc. --is merely a covenant not to sue, and not a release, and will not operate to discharge another joint tortfeasor from liability.

8.Damages -- Instructions -- Personal Injuries--Future Pain and Loss of Future Wages.Instruction as to measure of damages upheld on authority of Midland Valley Railroad Co. v. Hilliard, 46 Okla. 391, 148 P. 1001, and authorities therein cited.

Everest & Campbell, for plaintiffs in error.

Ames, Chambers, Lowe & Richardson, and Hogsett & Boyle, for defendant in error.

BROWN, C.

¶1The plaintiffs in error will be hereinafter called the defendants, and the defendants in error will be hereinafter called the plaintiff, in accord with their respective titles in the trial court.The school district at Mountain View, Okla., on the 14th day of July, 1909, entered into two contracts, one for the construction of a school building and one for the installation of a heating and ventilating system in said building.The defendants had the contract for the construction of said building, and were to furnish all material and do all the work necessary to a complete structure in accordance with certain plans and specifications, save the installation of said heating and ventilating system.Lewis & Kitchens had the contract to install the heating and ventilating system, in accordance with certain plans and specifications.It was required by the plans and specifications for the building that a certain tank, which was a part of the heating and ventilating system to be installed by the said Lewis & Kitchens, was to be supported by the joists in the attic of the said building, and these joists were to be furnished and placed in said building by the defendants, and the defendants knew that the same were to be used as a support for said tank.The joists were made of pine lumber, size 2x6 and 12 or 14 feet in length, and were placed 16 inches apart from center to center, and extended north and south from one wall to another.Said joists were of size and length, and placed the distance apart, as called for by the plans and specifications.The plaintiff was superintendent for Lewis & Kitchens, and had charge of installing the heating and ventilating system.After the defendants had finished their work in the attic where this tank was to be placed, but before they had fully completed the building and delivered it to the owner, the plaintiff went into the attic to place the tank, and, while placing the tank upon said joists, one of the joists broke, and the plaintiff fell some 12 or 15 feet and was considerably injured.The evidence tended to show that said joists broke by reason of being windshaken or worm-eaten.Plaintiff brought this action against defendants to recover damages for the personal injuries received by the fall, basing his petition upon the above facts, with the allegation as to negligence as follows:

"* * * Defendants were careless and negligent in putting in place and maintaining said weak, rotten, and defective joist, when they knew, or by the exercise of ordinary care could have known, of its condition; and when they knew the purpose said joist was intended to serve; and when they knew it would be necessary for this plaintiff and other workmen, while in and about their work, to walk over and upon and stand upon this and other joists; and when they knew that plaintiff and other workmen intended to work upon and about said joists; and when they knew, or by the exercise of reasonable care could have known that said joist was liable to break and injure this plaintiff or other workmen."

¶2The plaintiff recovered judgment against the defendants for $ 3,000.Defendants filed a motion for a new trial, and same was overruled and exceptions allowed, and the case is brought here to have the action of the trial court reviewed.We deem it unnecessary, at this time, to make a fuller statement of facts, as same will more fully appear, where they are necessary to be stated, in the discussion of the various assignments of error to be considered by the court.The first point urged by the defendants calls for a determination of the trial court's action in overruling a demurrer to the petition, a demurrer to the evidence, and refusing to direct a verdict in favor of the defendants.The defendants claim that they owed the plaintiff no duty at the time he was injured, and that therefore there can be no liability.It is a familiar proposition that in every case involving actionable negligence, there are, of necessity, three constituent elements, to its existence: First, the existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains; second, the failure of the defendant to perform that duty; third, injury to the plaintiff resulting from such failure of the defendant.And it is only when these elements are brought together unitedly that actionable negligence is constituted.The absence of an affirmative showing of any one of these essential elements renders the petition bad, or the evidence insufficient.Loehring v. Westlake Const. Co., 118 Mo. App. 163, 94 S.W. 747;Faurot v. Oklahoma Wholesale Gro. Co., 21 Okla. 104, 95 P. 463, 17 L. R. A. (N. S.) 136;Faris v. Hoberg, 134 Ind. 269, 33 N.E. 1028, 39 Am. St. Rep. 261;Texas Co. v. Collins, 42 Okla. 374, 141 P. 783;C., R. I. & P. R. Co. v. McIntire, 29 Okla. 797, 119 P. 1008;St. L. & S. F. R. Co. v. Lee, 37 Okla. 545, 132 P. 1072, 46 L. R. A. (N. S.) 357.With these principles in mind we shall examine the facts of the case.The plaintiff...