Phillips Petroleum Co. v. Matthesen
| Citation | 44 P.2d 56,1935 OK 435,171 Okla. 541 |
| Decision Date | 16 April 1935 |
| Docket Number | Case Number: 25055 |
| Parties | PHILLIPS PETROLEUM CO. v. MATTHESEN et ux. |
| Court | Supreme Court of Oklahoma |
¶0 1. Pleading--Sufficiency of Petition as Against General Demurrer.
The rule is settled that, on demurrer to the petition as defective in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed and all its allegations, for the purposes of the demurrer, taken as true, and such demurrer can be sustained only where the petition presents defects so substantial and fatal as to authorize the court to say that, taking all the facts to be admitted, they furnish no cause of action whatever. If the facts stated in the petition entitle the plaintiff to any relief, the general demurrer should be overruled. Shaffer Oil & Refining Co. v. Thomas, 120 Okla. 253, 252 P. 41.
2. Appeal and Error--Two Methods of Presenting Error in Overruling Demurrer to Petition.
When a defendant desires to present to this court as error the overruling of a demurrer to the petition, it may be presented by two methods: (a) By saving the proper exception and having the appeal lodged in this court within six months from the date of the order. (b) By saving the proper exception and incorporating the order of the trial court in overruling the demurrer as one of the grounds of the motion for a new trial, and perfecting the appeal in this court within six months from the date of the overruling of the motion for a new trial. Aultman & Taylor Machinery Co. v. Fuss, 86 Okla. 168, 207 P. 308.
3. Negligence -- Contributory Negligence -- Infant Trespassers.
A child under seven years of age, or, in the absence of capacity, between seven and fourteen years of age, is presumed to be incapable of guilt of more than technical trespass, as affecting question of duty of owner in respect to dangerous condition of premises, and the character of the trespass may be a circumstance to be considered by the jury in ascertaining whether there is contributory negligence.
4. Same -- Sufficiency of Plaintiff's Evidence as Against Demurrer.
In an action for damages for personal injury charged to have been caused by negligence, the court should not sustain a demurrer to the evidence and withdraw the case from the jury, unless, as a matter of law, no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.
5. Same--Injuries to Child Playing With Heavy Pipe Laid Near Ditch Preparatory to Laying Pipe Line--Liability--Questions for Jury.
Where a child five years old was injured by heavy eight-inch iron pipe placed in the public street on ground with a slope of 25 degrees toward a ditch two and one-half feet deep, at a place where children had, within the knowledge of defendant's workmen, been playing during the day, whether the iron pipe was blocked, or, if it was blocked, whether it was properly blocked, under all the circumstances, whether it was attractive to allure children into danger, whether it was dangerous, or whether it was left in a dangerous condition, whether the situation was such as to suggest to the defendant company the probability of accident, and whether the defendant company was negligent, presents questions of fact for the jury.
Appeal from District Court, Oklahoma County; Hal Johnson, Assigned Judge.
Action by George Matthesen and Carrie Matthesen, his wife, against the Phillips Petroleum Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
R. H. Hudson, H. K. Hudson, R. E. Boggess, and R. B. F. Hummer, for plaintiff in error.
Dudley, Hyde, Duvall & Dudley, for defendants in error.
¶1 For convenience the parties will be referred to as they appeared in the trial court.
¶2 This action was instituted by plaintiffs George Matthesen and Carrie Matthesen, his wife, against the defendant, Phillips Petroleum Company, a corporation, to recover damages for the wrongful death of their son Byron Matthesen, a boy about five years of age, alleged to have been caused by the negligence of the defendant.
¶3 Plaintiffs alleged in their amended petition that on May 18, 1931, they resided on the south side of High street; that defendant was laying a pipe line in front of plaintiffs' house; that defendant had unloaded and stacked a large amount of iron pipe in front of plaintiffs' house on sloping ground adjacent to the ditch where the pipe was to be buried; that the pipe was attractive to children, and that children in the neighborhood were playing on said pipe; that the defendant negligently stacked the pipe on ground sloping toward the ditch, and failed to block or otherwise anchor the same; that the deceased son of plaintiffs, while on the pipe, was rolled into the ditch, and the defendant's pipe rolled in upon him, injuring him to the extent that he died the next day. Plaintiffs alleged that the boy was about five years old, strong, healthy, etc., and that plaintiffs suffered loss by his death in the sum prayed for. The defendant's general demurrer to the plaintiffs' amended petition was overruled, and exception reserved. The defendant thereupon answered by a general denial, and pleaded contributory negligence on the part of the parents, for failing to guard the child and remove him from the proximity of defendant's operations. Plaintiffs replied by a general denial. The case was tried to a jury, and at the close of the plaintiffs' evidence, defendant interposed its demurrer thereto, which was by the court overruled, and exceptions saved.
¶4 At the close of all the evidence the defendant moved for a directed verdict. This motion was overruled, and exception saved.
¶5 Thereafter the case was submitted to the jury under the court's instructions and a verdict returned in favor of plaintiffs and against the defendant for the sum of $ 1,650.
¶6 Defendant's motion for a new trial was overruled, exceptions saved, judgment was rendered in accordance with the verdict of the jury, and from said judgment defendant appealed to this court by petition in error and case-made attached.
¶7 For reversal of the judgment, the defendant presents numerous assignments of error.
¶8 The first proposition presented is that the court erred in overruling the defendant's demurrer to plaintiffs' amended petition.
¶9 The rule is well settled that on a demurrer to a petition as defective in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed, and all its allegations, for the purposes of the demurrer, taken as true, and such demurrer can be sustained only where the petition presents defects so substantial and fatal as to authorize the courts to say that, taking all the facts to be admitted, they furnish no cause of action whatever. If the facts stated in the petition entitle the plaintiffs to any relief, a demurrer for want of sufficient facts should be overruled. Shaffer Oil & Refining Co. v. Thomas, 120 Okla. 253, 252 P. 41.
¶10 The record discloses that defendant's demurrer to plaintiffs' amended petition was overruled February 13, 1932, and the defendant given 15 days to answer.
¶11 The defendant's motion for new trial was presented on the 7th day of April, 1933, and the appeal was filed in this court October 2, 1933. It further appears that the defendant did not incorporate as error the overruling of the demurrer to the amended petition in its motion for a new trial. Counsel for plaintiffs do not raise the point in their brief, but in a number of decisions of this court, it has been held that when a defendant desires to present to this court as error the overruling of a demurrer to the petition, it may be presented by two methods:
¶12 But aside from this, we are of the opinion that, although the amended petition might have been subject to challenge by proper motion, it was sufficient as against a general demurrer.
¶13 Defendant's third and seventh assignments of error are treated together in its brief, and they will be considered together here. Defendant says the court erred in overruling the demurrer of the defendant to the evidence of the plaintiff, and in refusing to direct a verdict for the defendant. These assignments go into the sufficiency of the evidence, and a consideration of the same requires an examination of all the evidence. In this we are required to view the evidence in the most favorable light towards plaintiffs' case.
¶14 As to the following facts, the evidence of both plaintiffs and defendant is in reasonable accord:
¶15 The defendant was rightfully in the street laying its pipe line. On the morning of May 18, 1931, about 9 a. m. defendant's pipe line gang, consisting of 30 or 40 men, strung their eight-inch iron pipe along the street in front of plaintiffs' house. The pipe was rolled close to the fence on the east side of the street. The joints of pipe were about 20 feet long and weighed about 24 pounds to the foot, or about 480 pounds to the joint. The joints of pipe were dropped approximately end to end, except at one place where there was a culvert on the driveway leading to plaintiffs' house. Here were placed two joints, to avoid blocking the driveway. The first joint was close to the fence on the east side of the highway, and the second joint was immediately west of the first joint. It was about four feet from the fence where the two joints lay to the ditch where they were to be placed. The...
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