Okla. Gas & Elec. Co. v. Priest

• Decision Date: 04 November 1936
• Docket Number: Case Number: 25466
• Citation: 1936 OK 690,178 Okla. 91,62 P.2d 55
• Parties: OKLAHOMA GAS & ELECTRIC CO. v. PRIEST
• Court: Oklahoma Supreme Court

1936 OK 690

62 P.2d 55

178 Okla. 91

OKLAHOMA GAS & ELECTRIC CO. v. PRIEST

Case Number: 25466

Supreme Court of Oklahoma

Decided: November 4, 1936

Syllabus

¶0 1. TRIAL - Issues Presented by Allegations That Have Been Stricken not Properly Before Court for Submission to Jury.

The only issues presented for a court to try are those raised by the pleadings on file when the case is tried. Where certain allegations in the petition have been stricken by order of the trial court, the issues raised by said allegations are not before the court on the trial of the case, unless said issues are raised by subsequent pleadings, and it is reversible error for the trial court to submit said issues to the jury.

2. SAME - Personal Injuries From Assault as Element of Damages Eliminated After Allegations Stricken - Admission of Evidence and Submission of Issue to Jury Held Error.

In an action for damages for personal in juries plaintiff alleged, as an element of damages, that an assault was committed upon him by defendant's agent. Thereafter said allegations were stricken by order of the trial court on the ground that an action for assault was barred by the statute of limitations. No exception was taken to said order and plaintiff did not elect to stand on his pleadings. Held, that the determination of the trial court that the action for assault was barred by the statute of limitations thereby became final; that evidence of said assault was inadmissible, and that it was error to submit to the jury the issue of defendant's liability to plaintiff for damages for injuries sustained by reason of said assault.

Appeal from District Court, Oklahoma County; George A. Henshaw, Judge.

Action by W.J. Priest against the Oklahoma Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Rainey, Flynn, Green & Anderson and John P. Roemer, for plaintiff in error.

Carmon Harris, John Morrison, and W.P. Morrison, for defendant in error.

OSBORN, V. C. J.

¶1 This action was instituted in the district court of Oklahoma county by W.J. Priest, hereinafter referred to as plaintiff, against the Oklahoma Gas & Electric Company, hereinafter referred to as defendant, wherein plaintiff sought to recover damages for personal injuries sustained by him as a result of alleged improper medical attention administered to him by a physician selected by defendant. Lester E. Johnson, foreman of the construction department of the defendant corporation, was named as a party defendant, but was not served with summons. The cause was tried to a jury and a verdict rendered in favor of plaintiff for $2,500. From a judgment thereon, defendant has appealed.

¶2 We quote a portion of paragraph 2 of plaintiff's petition as follows:

"That on and prior to the 4th day of March, 1931, plaintiff was an employee of defendant Oklahoma Gas & Electric Company and that on the 4th day of March, 1931, defendant Lester E. Johnson was foreman of the construction department, for the fendant Oklahoma Gas & Electric Company, pany and subprincipal of the defendant Oklahoma Gas & Electric Company, under whom the plaintiff was employed, and while acting as said subprincipal and agent, went to the home of the plaintiff and maliciously assaulted and otherwise abused plaintiff, who is a man of advanced years, without any cause or provocation, and caused the plaintiff to be overcome by hysteria and fear, and that as a result, the plaintiff was prostrated and was placed in bed. That all of the acts of the said defendant Lester E. Johnson, as aforesaid, were committed while acting as subprincipal and agent of the defendant Oklahoma Gas & Electric Company, and in the course of his employment, to wit: That plaintiff had been acting as night watchman and after leaving his place of employment, had gone home to sleep and that the defendant Lester E. Johnson went to the home of the plaintiff for the purpose of admonishing and disciplining plaintiff because of the manner in which plaintiff discharged his duties. That by reason of the acts of the defendant Lester E. Johnson as aforesaid, it was necessary for medical treatment to be administered to the plaintiff. That while still acting as agent of the defendant, the Oklahoma Gas & Electric Company, the defendant Lester E. Johnson called, or caused to be called, one Dr. Griggs, then residing at Harrah, Okla., for the purpose of administering medical attention to the plaintiff and that the said Dr. Griggs administered medical treatment to the plaintiff at the insistence and request of defendant or its agent."

¶3 Plaintiff further alleged that Dr. Griggs negligently, carelessly, and unskillfully used an unsterilized hypodermic needle for the purpose of making an injection in plaintiff's right arm, causing plaintiff's arm to swell and become painful and ultimately resulting in permanent disability to said right arm; that the said Dr. Griggs was a negligent, careless, and incompetent physician and was in the habit of becoming intoxicated and remaining in such condition for several days and sometimes several weeks, which facts were known, or with the exercise of due diligence should have been known, by the defendant; that the defendant company, or its agent, Johnson, did not exercise ordinary care and discretion in selecting and calling the said Dr. Griggs for the purpose of administering medical treatment to plaintiff, all of which was the proximate cause of plaintiff's damage. We quote paragraph 3 of plaintiff's petition as follows:

"That by reason of the negligence, carelessness, and lack of ordinary discretion and care on the part of the defendants and each of them, in selecting and providing a careless, negligent, unskilled and incompetent physician, to administer medical treatment to the plaintiff; that plaintiff has been damaged as follows, $1,000 loss of earning while totally disabled; $2,000 pain and suffering; $3,000 for permanent damage and disability to his right arm and $500 doctor bills."

¶4 The petition was filed on January 4, 1933. On February 23, 1933, plaintiff secured permission of the trial court to amend the petition by interlineation. The...