Ruland v. Zenith Const. Co.
| Decision Date | 03 May 1955 |
| Docket Number | No. 36027,36027 |
| Parties | Frank RULAND, Plaintiff In Error, v. ZENITH CONSTRUCTION COMPANY, a foreign corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Ordinarily the existence of an illness and the cause thereof are matters of medical science to be established by expert testimony.
2. In an action for allegedly willful and malicious trespass to real property wherein punitive damages are sought, all circumstances tending to prove that the defendant was without malice or evil design
or to mitigate the existence thereof are admissible in evidence.
3. Contention of prejudice on part of trial judge made in brief of plaintiff in error is not timely made when neither motion for new trial nor petition in error contained any such allegation and no request for disqualification of trial judge was made nor any motion for mistrial filed during trial.
Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.
Action by Frank Ruland against Zenith Construction Company for damages resulting in a judgment for plaintiff in the amount of $50.00, from which plaintiff appeals. Affirmed.
Frantz C. Conrad, Oklahoma City, for plaintiff in error.
Twyford, Smith & Crowe, Oklahoma City, for defendant in error.
This action was brought by Frank Ruland, hereinafter referred to as plaintiff, against Zenith Construction Company, hereinafter referred to as defendant, to recover damages for alleged injury to plaintiff's real property and for interference with plaintiff's quiet enjoyment and use thereof. A trial to a jury resulted in a verdict for plaintiff in the amount of $50 and judgment was rendered accordingly.
Plaintiff appeals because of the alleged insignificant amount of his recovery, urging three assignments of error.
As his first assignment of error, plaintiff urges error on the part of the trial court in excluding material and competent evidence. The only objection to the admission of testimony sustained by the court and excepted to by plaintiff set out in plaintiff's brief occurred when plaintiff's counsel made an offer of proof whereby he offered to prove by the testimony of plaintiff himself that by reason of the cursings and threats that by reason of the cursings and threats presence of plaintiff's wife, she (plaintiff's wife) became ill, nervous and sick, and was prevented from carrying on her household duties. Objection was made to such offer on the ground it was incompetent, irrelevant and immaterial, and that the witness was not qualified to testify to such matters, which was sustained by the court. Plaintiff states that it is clear that the court erred thereby, but does not point out in what way the court erred. Plaintiff's wife was not a party to the lawsuit and any damage she may have sustained was not material here. It is true that a husband may recover compensation for loss of services, society, and companionship of his wife, due to the negligence of another, in an action brought by him for that purpose. Aderhold v. Stewart, 172 Okl. 77, 46 P.2d 346. However plaintiff's petition here alleges no such cause of action. Plaintiff's petition alleges a cause of action for trespass to real property and an alleged assault upon himself. He does allege in his petition that his wife became ill and nervous, but he does not allege any resulting loss of services, society or companionship or pray for recovery for any such loss. Furthermore, the objection was properly sustained on the ground that the witness was not qualified to testify to the matter offered. Plaintiff's offer was to prove by his own testimony that certain things resulted in his wife becoming ill, nervous and sick. Plaintiff was a lay witness and not qualified as a medical expert. The cause of his wife's illness, if material to the case at all, is a matter of medical science to be established by expert testimony. Inter-Ocean Oil Co. v. Marshall, 166 Okl. 118, 26 P.2d 399; Cushing CocaCola Bottling Co. v. Francis, 206 Okl. 553, 245 P.2d 84. We conclude that the court did not err in excluding plaintiff's offer of proof.
As his second proposition, plaintiff urges error on the part of the trial court in admitting incompetent evidence on the part of the defendant. This assignment is directed toward the action of the trial court in allowing the defendant to introduce evidence showing that it had resorted to hand digging of the necessary trench across the easement over the rear of plaintiff's lot instead of using...
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...in the form of an appendix supplied by each party). 13. Matchen v. McGahey, 1969 OK 48, 455 P.2d 52, 57. See Ruland v. Zenith Const. Co., 1955 OK 132, 283 P.2d 540, 541, (the cause of a medical illness is a matter of medical science to be established by expert testimony); Boxberger v. Marti......
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