Rogers v. Dickerson

• Decision Date: 09 February 1937
• Docket Number: Case Number: 25964
• Citation: 1937 OK 97,71 P.2d 729,180 Okla. 595
• Parties: ROGERS v. DICKERSON
• Court: Oklahoma Supreme Court

1937 OK 97

71 P.2d 729

180 Okla. 595

ROGERS v. DICKERSON

Case Number: 25964

Supreme Court of Oklahoma

Decided: February 9, 1937

Syllabus

¶0 1. APPEAL AND ERROR --

A party will not be heard to complain that incompetent evidence was admitted in the trial of the cause where no objection was made to its admission.

2. TRIAL --

It is not error to refuse special instructions, where the general instructions are sufficiently broad to enable the jury to fully understand the law of the case.

3. SAME --

In the voir dire examination of jurors in a personal injury case, counsel for plaintiff may interrogate prospective jurors with respect to their interest in or connection with indemnity insurance companies, so long as he acts in good faith for the purpose only of ascertaining the qualifications of the jurors.

Appeal from District Court, Oklahoma County; Eugene Rice, Judge.

Action by Leon D. Dickerson against Dr. McLain Rogers. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. H. Owen and Paul N. Lindsey, both of Oklahoma City, for plaintiff in error.

W. P. Morrison, of Oklahoma City, A. L. Morrison, of El Reno, John Morrison, of Oklahoma City, and Ray K. Bannister, of El Reno, for defendant in error.

BAYLESS, Vice Chief Justice.

¶1 This is an appeal from the district court of Oklahoma county, Okl., wherein Leon D. Dickerson, plaintiff below, defendant in error here, recovered a judgment for $4,000 and costs against Dr. McLain Rogers, defendant below, plaintiff in error here. The parties will be referred to as they appeared in the lower court.

¶2 For an understanding of the fact situation we give the following statement, and as we discuss the different assignments of error we will give the facts and evidence pertinent to the question involved:

¶3 On or about the last day of September, 1931, the plaintiff sustained an injury to his left arm in an automobile accident. After the accident, he and other people drove his car to Clinton, where the plaintiff placed himself under the care of the defendant, a doctor, and in his hospital. The plaintiff alleges that the defendant negligently treated him and that he unnecessarily amputated his arm without telling the plaintiff beforehand or obtaining his consent. The case was tried to the court and jury, and the jury returned a verdict for the plaintiff, giving him a judgment for $4,000, which was approved by the court, from which the defendant appeals.

¶4 The defendant makes seven assignments of error in his brief, but subdivides them in such a manner that there are ten propositions presented. The first seven propositions relate to the admissibility of the certain evidence, of the value of certain testimony, and the weight of the evidence generally. The remaining three are:

"(8) The court erred in refusing to give Instruction No. 2, requested by the defendant.

"(9) The court erred in allowing plaintiff's attorney to question the jurors on their voir dire as to their interest in liability insurance companies.

"(10) A new trial should have been granted on the ground of newly discovered evidence."

¶5 Some of the assignments of error were not included in these propositions and were not argued in the briefs of the defendant. We will not discuss those assignments not briefed and argued.

¶6 The first seven of these propositions may be disposed of together, and to do so we must set out parts of the testimony of the different witnesses, bearing in mind that we are only examining enough of the evidence to justify the court in submitting the case to the consideration of the jury. See Kelley v. McKay, 120 Okl. 215, 251 P. 82; Curry v. Jeter, 109 Okl. 200, 235 P. 188; Okla. Union Ry. Co. v. Mitchell, 105 Okl. 152, 231 P. 1062; and many other cases.

¶7 The plaintiff testified as to the outward appearance of his arm, describing it in a manner that any layman might describe such an injury. Then Dr. E. C. Wilson was qualified as an expert witness and testified for the plaintiff as follows:

"Q. You heard the testimony of the plaintiff in this case regarding the injury that he sustained? A. Yes, sir.

"Q. Assuming these facts to be true, Dr. in your opinion as a physician and surgeon, was the operation such as he had, amputation of the arm, necessary? A. No, sir."

¶8 Other questions were asked the doctor pertaining to the injury, but at no time was an objection made to the testimony of Dr. Wilson or the plaintiff. The defendant attempts to raise an objection at this time to this testimony, but this court will not permit a party to raise a question of the competency of parties to testify and their testimony on appeal when he has not made an objection and saved his exception in the lower court. See Muskogee Electric Traction Co. v. McIntire, 37 Okl. 684, 133 P. 213, L.R.A.1916C, 351; Sheean v. Walden, 130 Okl. 51, 265 P. 141; J. R. Watkins Co. v. Jennings, 131 Okl. 295, 269 P. 265; Tinley v. Ammerman, 150 Okl. 215, 299 P. 918. Thus we see that there was expert testimony as to the lack of necessity of the amputation and there was sufficient testimony for consideration by a jury.

¶9 Propositions 5 and 7 are inapplicable, since the testimony of Dr. Wilson is directly in conflict with the testimony of the expert witnesses for the defendant, making an issue of fact to be passed on by the jury. The testimony of the plaintiff and other witnesses show that on two occasions when the defendant examined plaintiff's arm he advised him that it would not be necessary to amputate his arm, which testimony was not objected to by the defendant, but the defendant cross-examined the witnesses on that point. Since the foregoing testimony was not objected to, but accepted by the defendant, there were issues of fact to be decided by the jury and properly submitted to it.

¶10 Defendant contends under proposition 8 that the court erred in refusing to give his requested instruction No. 2, which is as follows: "You are instructed that if you find from the evidence that the plaintiff consented to the amputation of his arm then your verdict must be for the defendant."

¶11 The court gave the following instruction: "* * * the defendant without the consent of the plaintiff would have no right to amputate his arm. If you find from the evidence that the plaintiff did not consent to the amputation of his arm then your verdict must be for the plaintiff, unless you further find that the amputation was necessary. * * *"

¶12 Upon reading these instructions, we should give them the most logical and reasonable construction. The instruction given by the court is to an extent ambiguous, but the most simple reasoning would find it to mean that, if the defendant had performed the amputation without the consent of the plaintiff, the defendant would be liable, while, if the court were to have stated the instruction in the reverse manner to obtain the same result, he may have said that, if the defendant performed the amputation with the consent of the plaintiff, then the defendant would not be liable and plaintiff could not recover. So the instruction given by the court contained in substance the same instruction requested by the defendant. It is not necessary for the court to state the instructions in both the positive and negative form, so long as the proper rule of law is stated. City of Chickasha v. Daniels, 123 Okl. 73, 251 P. 978, 51 A.L.R. 568; City of Tulsa v. Springfield Life Ins. Co., 157 Okl. 218, 11 P. (2d) 493.

¶13 The ninth proposition complains of the court permitting attorney for plaintiff to inquire in the voir dire if the jurors were interested in insurance companies that wrote liability insurance. The rule of law: "In a suit for personal injuries, after the jury has been sworn and placed in the jury box, no references should be made to whether or not the defendant carried insurance, and if such references are made, it is reversible error, although the trial court instructs the jury not to consider the same," quoted by plaintiff is entirely correct, but this rule of law does not prohibit a party to an action from inquiring on voir dire into the interests that a juror may have in the particular case. In the case at bar this court is of the opinion that such a question was proper for the protection of his client and yet did not give the jury notice that the defendant was protected with insurance, for the reason that had the jurors been interested in an insurance company that carried liability insurance for the defendant at that time they would have had a monetary interest in the case and would not have been qualified as jurors. See 35 C. J. 314, § 326, and notes; Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 136 P. 835, 45 L.R.A. (N.S.) 338, L.R.A. 1915F, 782, Ann.Cas. 1915C, 256; and Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Harris v. Elliott (Okl.Sup.) 61 P. (2d) 1089; and Green Const. Co. v. Lampe, 174 Okl. 351, 50 P. (2d) 286.

¶14 Proposition 10 contends that a new trial should be granted on the ground of newly discovered evidence, but, after a perusal of the record and affidavit attached to the motion for new trial, we find that the proposed newly discovered evidence is either cumulative or immaterial and is not sufficient to grant a new trial.

¶15 The judgment is affirmed.

¶16 OSBORN, C. J., and WELCH, PHELPS, and HURST, JJ., concur.

On Rehearing.

GIBSON, Justice (dissenting).

¶1 The plaintiff concedes the rule to be: "Where the injuries are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must necessarily be determined by the testimony of skilled professional persons, and cannot be determined from the testimony of unskilled witnesses having no scientific knowledge of...