Pressley v. Inc.

• Decision Date: 18 January 1916
• Docket Number: Case Number: 6541
• Citation: 1916 OK 75,154 P. 660,54 Okla. 747
• Parties: PRESSLEY et al. v. INCORPORATED TOWN OF SALLISAW et al.
• Court: Oklahoma Supreme Court

1916 OK 75

154 P. 660

54 Okla. 747

PRESSLEY et al. v. INCORPORATED TOWN OF SALLISAW et al.

Case Number: 6541

Supreme Court of Oklahoma

Decided: January 18, 1916

Syllabus

¶0 1. APPEAL AND ERROR--Invited Error--Instruction. Where, at the request of a party to the cause, an erroneous prejudicial instruction is given by the trial court to the jury, the party at whose instance such instruction is given cannot, on appeal to this court, urge a reversal based upon such error.

2. CONTRACTS--Construction of Unambiguous Contract-- Question of Law--Independent Contractors. Whether or not a party to an unambiguous contract is an independent contractor is a question of law, to be determined by the court from an inspection of the contract, in the light of the surrounding circumstances.

3. APPEAL AND ERROR--Ground for Reversal- -Remarks of Court. In the presence of the jury in the trial of the cause, the court ex mero motu made the following statement, and did not afterwards withdraw the same, or caution the jury not to regard it: "Now, this contract is introduced here. I have heard Mr. Wheeler testify. He is the engineer for the town. I have heard this contract read, and the specifications, and all that, and it occurs to me at this time that the town of Sallisaw is not liable in this matter. Well, I haven't decided the question, but, as I say, if the town is liable, it is under this contract, and the view of the court at this time is that under that contract the city would not be liable. I will instruct the jury in the matter." Held, that the making of such statement in the presence of the jury was prejudicial error.

4. MUNICIPAL CORPORATIONS--Injury to Servant--Independent Contractor--Construction of Contract. The contract in evidence in this case carefully considered, and defendant Oklahoma Engineering Company held not to be an independent contractor.

5. DEATH--Recovery by "Children"-- Right--Amount. Under section 5281, Rev. Laws 1910, the right of recovery is not limited to children of a deceased father up to their majority, but extends to all children of deceased, regardless of their ages; but the recovery had, whether by minor or adult children, must be based upon the reasonable expectancy of pecuniary benefit, of which they were deprived by the death of their father.

6. MASTER AND SERVANT--Negligence of Vice Principal-- Liability of Principal. Where the relation of principal and vice principal exists, as in this case, the principal is liable in damages for the wrongful killing of a father, caused by the negligence of the vice principal.

Roy Frye and Joe Bailey Allen, for plaintiffs in error.

Curtis & Pitchford, Read & McDonough, and J. H. Jarman, for defendants in error.

COLLIER, C.

¶1 The request of defendants, in their brief, that the judgment against defendant Oklahoma Engineering Company in the sum of $ 1,350 be affirmed, is an admission that the death of Kin Pressley was due to the negligence of said company, for which said company was liable. This admission leaves the following questions for our consideration: (1) Was the Oklahoma Engineering Company an independent contractor? (2) Did the court commit prejudicial error in the statement made in the presence of the jury in regard to the nonliability of the town of Sallisaw? (3) Were said minors, daughters of deceased, entitled to compensation on account of the death of their father for a period beyond the time of attaining their majority? That said Oklahoma Engineering Company was not an independent contractor, under the provisions of the contract hereinbefore recited, entered into with the town of Sallisaw, is not an open question in this jurisdiction. Missouri, K. & O. Ry. Co. v. Ferguson, 21 Okla. 266, 96 P. 755; Chas. T. Derr Const. Co. et al. v. Gelruth, 29 Okla. 538, 120 P. 253; Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okla. 358, 128 P. 705; Chicago, R. I. & P. Ry. Co. v. Bond, 47 Okla. 161, 148 P. 103; Muskogee Elec. Co. v. Hairel et al., 46 Okla. 409, 148 P. 1005. See, also, New Orleans, M. & C. R. R. Co. v. Hanning, 15 Wall. 649, 21 L. Ed. 220; Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S. Ct. 175, 33 L. Ed. 440; Bibb's, Adm'r, v. N. & W. R. R. Co., 87 Va. 711, 14 S.E. 163; De Palma et al. v. Weinman et al., 15 N.M. 68, 103 P. 782, 24 L. R. A. (N. S.) 423; Conners v. Hennessey, 112 Mass. 96. Whether or not the Oklahoma Engineering Company was an independent contractor was a question of law for the court to determine from the face of the contract, in the light of surrounding circumstances, and it was prejudicial error to submit this question as a question of fact to the jury. Chicago, R. I. & P. Ry. Co. v. Bond, supra; Muskogee Elec. Trac. Co. v. Hairel et al., supra. But the question of whether or not the Oklahoma Engineering Company was an independent contractor was submitted to the jury as a question of fact, under instruction No. 1, requested by plaintiff. Therefore the insistence of plaintiff that such action of the court was prejudicial error, or even error, has no basis upon which to stand. Certainly it is unnecessary to cite authorities to sustain the proposition that one cannot complain on appeal to this court of errors which he caused the trial court to commit, and to which no exception was, or could have been, saved. The statement of the court, in the presence of the jury, that the town of Sallisaw was not liable, was made entirely ex mero motu, so far as the record discloses, and was duly excepted to by plaintiffs. This statement was not withdrawn from the jury by the court, nor was the jury instructed to disregard such statement. That said statement of the court made a lasting impression upon the jury, affecting their verdict, is shown by the inconsistent verdict returned by the jury, finding in favor of the town of Sallisaw and against the Oklahoma Engineering Company, notwithstanding the court, in its instruction No. 1, in effect instructed that, if the Oklahoma Engineering Company was liable, the town of Sallisaw was also liable. Said statement in the presence of the jury, we think, was reversible error. When remarks, made by a judge in the progress of a trial, are calculated to mislead the jury, or prejudice the party complaining, and the verdict of the jury conclusively shows that such remarks affected their verdict, the making of such remarks in the presence of the jury is reversible error. City of Guthrie v. Carey, 15 Okla. 276, 81 P. 431; Skelly v. Boland, 78 Ill. 438. The instruction of the court that said plaintiffs would not be entitled to any compensation on account of the death of their father,...