Revel v. Pruitt

• Decision Date: 18 August 1914
• Docket Number: Case Number: 3790
• Citation: 1914 OK 372,142 P. 1019,42 Okla. 696
• Parties: REVEL et al. v. PRUITT.
• Court: Oklahoma Supreme Court

1914 OK 372

142 P. 1019

42 Okla. 696

REVEL et al. v. PRUITT.

Case Number: 3790

Supreme Court of Oklahoma

Decided: August 18, 1914

Syllabus

¶0 1. NEGLIGENCE--Contributory Negligence--Submission of Issues. There was ample evidence of the primary negligence of defendants, and the question of plaintiff's contributory negligence was properly submitted to the jury.

2. PARENT AND CHILD--Earnings of Child-- Emancipation. Under the laws of this state, parents are, ordinarily, entitled to the earnings of a minor child, and may sue and recover same; but the parent may emancipate the minor child, in which event such minor may receive, recover, and retain the fruits of his own industry.

3. PLEADING--Sufficiency--Implied Allegations. It is a well-established principle of pleading that there need be no direct allegation of a fact if the same otherwise sufficiency appears, or of a fact which is necessarily implied from other averments in the petition.

4. ESTOPPEL--Pleading-- Petition--Conclusions--Emancipation of Child. The fact that a minor child's earnings have been relinquished to him--that he has been emancipated--is necessarily implied, and will be inferred, from the averments of a petition in an action to recover damages for decreased earning power that is brought by the father as such and as next friend for the minor, and in which the father avers that the minor is entitled to have and recover, in his own suit, such damages; and the failure to specifically allege the son's emancipation does not render such a petition fatally defective, nor does it prevent the introduction of proof of the fact of emancipation. (a) Under such circumstances, the acts of the father in prosecuting a suit as next friend for his minor son would estop such father from later maintaining a suit to recover such damages for his own use.

5. DAMAGES--Personal Injuries--Special Damages--Pleading. In a suit for damages on account of personal injuries it requires an allegation that obligations have been incurred for medical attention, hospital fees, etc., to justify proof of, or a recovery for, such items, as they are in the nature of special damages.

Ross & Moss, for plaintiffs in error.

Head & Daniels, for defendant in error.

BREWER, C.

¶1 This is a suit brought by Y. W. Pruitt, as father and next friend of Howard Pruitt, a minor, as plaintiff below, to recover damages from O. D. Revel and Jacob Spangenberg, defendants, on account of personal injuries received by said minor and alleged to have been caused through the negligence of defendants. The petition discloses that Howard Pruitt, a youth of sixteen years of age, was employed by the defendants as "elevator boy." his duties being to operate a passenger elevator in defendants' building' and it is alleged that while in the course of his duties the boy was seriously injured because of defendants' negligence in permitting the elevator, its machinery attachments, cables, etc., to get into and remain in a defective condition, and for the failure to inspect the same, thereby causing the machinery to fail to work, causing the elevator to drop suddenly from the landing of the second floor, while the boy was trying to adjust the controlling lever, and through which he was caught between the cage and casing and his leg crushed and mangled so as to render him a permanent cripple, etc. The defendants for their answer filed a general denial anti set up the affirmative defense of contributory negligence. A general denial was filed for a reply, and the cause was tried to a jury, which returned a verdict for $ 1,500 in favor of the plaintiff, upon which judgment was entered in said sum by the court. The defendants appeal on case-made, properly certified, and present several points which they urge ought to reverse the case, and which will appear in the discussion to follow. 1. One of the contentions is that the demurrer to the evidence should have been sustained; but this point is not well taken and does not need extended consideration. That the defendants were grossly negligent and failed in their duty to the plaintiff, and to all others who had occasion to use the elevator, is abundantly established. In fact it is conceded by counsel in the brief, wherein it is said:

"We concede that the evidence in this case upon the part of the plaintiff established facts from which the jury were compelled to and did determine that the defendants were guilty of negligence in not keeping the elevator in question in repair. The defendants did not attempt by direct proof to dispute the acts upon which the jury based their verdict in making this finding. and without a doubt no other conclusions could have been sanely reached by the jury other than the conclusions which their verdict discloses they did reach."

¶2 But, notwithstanding their established negligence, appellants contend that plaintiff ought not to have been allowed to recover, because on the morning of the accident he discovered that there was something wrong with the elevator and became alarmed at its condition, and stopped it at its second floor landing and went and notified the defendants that it was not working properly, and then went back to the elevator immediately and reached over into the cage and attempted to throw off the control lever, and was in such a position in doing this that the sudden fall of the cage caused the injury; and that therefore the same was the result of plaintiff's own negligence. There might be something in this contention if the plaintiff had known the extent of the derangement and what was the matter with the machinery, and that turning the control lever would cause it to fall as it did; but he knew no such things. He knew something was wrong, and he was afraid of the elevator and so advised the proprietors; but, when he went back to it and saw the control lever in the situation he found it, his attempt to adjust it was a natural one and was likely prompted by a desire to protect the property, inasmuch as, so far as he knew, the elevator was as likely to go up to the roof as down to the cellar. He did not know that one of the cables had been permitted to remain in water in the basement until it was absolutely rotten, and had in fact come entirely apart. Furthermore, if he was negligent in doing what he did do, it would come under the head of contributory negligence, because the primary negligence of defendants is thoroughly established. This phase of the case was submitted to the jury by the court, in very apt and appropriate instructions, where they were in effect told that, notwithstanding defendants' negligence, if plaintiff was also negligent in what he did, and his negligence was a contributing proximate cause of his injury, he could not recover. The Constitution (article 23, sec. 6, Williams' Ann. Ed.) makes the question of contributory negligence...