St. Louis & S.F. Ry. Co. v. Keiffer
| Decision Date | 25 May 1915 |
| Docket Number | 4020. |
| Parties | ST. LOUIS & S. F. RY. CO. v. KEIFFER. |
| Court | Oklahoma Supreme Court |
On Rehearing, June 29, 1915.
Syllabus by the Court.
It is not error to permit an amendment, which pleads an additional cause of action, growing out of the same transaction, if it does not substantially change the claim or defense.
The statute of limitation does not run in favor of a foreign corporation, which has not complied with section 43, art. 9 of the Constitution of Oklahoma; such corporation being a person out of the state; and under section 5553, Comp. Laws 1909 (section 4660, Rev. Laws 1910), the personal absence of the defendant from the state puts in repose the statute of limitation.
No recovery can be had for mental pain and anguish, which is not produced by, connected with, or the result of, some physical suffering or injury, to the person enduring the mental anguish. Damages for pain suffered mentally, as the result of a physical injury, are allowed, for the reason that such mental suffering is necessarily a part of the physical suffering and injury, and is inseparable therefrom.
When plaintiff in the judgment offers in this court to remit the amount he is not legally entitled to recover, and this court can separate and determine the items, which he was lawfully entitled to recover, from the balance of the judgment, the judgment appealed from will be modified and affirmed.
Commissioners' Opinion, Division No. 2. Error from District Court, Murray County; R. McMillan, Judge.
Action by Harry Keiffer against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant brings error. Modified and affirmed on petition for rehearing.
W. E Evans, of St. Louis, Mo., and R. A. Kleinschmidt and E. H Foster, both of Oklahoma City, for plaintiff in error.
Ledbetter, Stuart & Bell, of Oklahoma City, for defendant in error.
This action was filed in the district court of Murray county by the defendant in error, Harry Keiffer, as plaintiff in that court, against the plaintiff in error, the St. Louis & San Francisco Railway Company, which was defendant in that court, to recover damages arising from an alleged breach of contract. The parties will hereinafter be referred to as they appeared in the court below. The original petition was filed December 3, 1909, and alleges: That David Keiffer, a brother of the plaintiff, was seriously ill at Madill, Okl., and the plaintiff was advised by the attending physician that an operation might save his life. That it was determined he should be carried to Gainesville, Tex., for the purpose of having the operation performed. That to make connection with the early morning south-bound train on the Santa Fé it was necessary to obtain the service of a special train from Madill to Ardmore. That plaintiff made a contract with the defendant to run a special train from Madill to Ardmore, to make connection with the Santa Fé, for the sole purpose of carrying his sick brother to Gainesville, to have the operation performed. That the defendant knew the purpose for which said train was being chartered, and that plaintiff paid for said train the sum of $75. That the special train left Madill in ample time to make the connection at Ardmore, but for the negligence of defendant in permitting certain freight trains to block the track when in a few miles of Ardmore, and prevented the special train, chartered by the plaintiff, from making connection with the Santa Fé at Ardmore. That the sick brother was conscious, and heard the whistle of the Santa Fé as it approached Ardmore, and realized that the connection could not be made and grew worse, and abandoned all hope of life, and died shortly after reaching Ardmore. That the plaintiff endured great mental pain and suffering on account of the delay and by reason of witnessing the suffering and worry of his sick brother, which was intensified by reason of the delay. And on account of the matters pleaded asks for damages in the sum of $1,950. The defendant demurred to the petition, which was overruled. The defendant then answered by general denial, and specifically denied that it contracted to make connection with the Santa Fé, but only contracted to make the run in a reasonable time under all the circumstances, and alleges that at the point at which the delay occurred, the defendant was running over the Rock Island track, and that the trains which obstructed the progress of the special were Rock Island freight trains over which it had no control, and that the delay was unavoidable, and denies the authority of the agent at Madill to contract for the special to make the trip in any specified time. On December 6, 1911, the plaintiff amends his petition by alleging that the special train was not properly heated, and that he suffered with cold during the trip; that he lost sleep, and endured physical pain and suffered great mental pain and anguish, by reason of the delay, and, on account of defendant violating its contract and the $75 expended by the plaintiff to procure the train, and the anxiety and pain suffered by plaintiff, asks for $1,950. The defendant refiles its original answer, with an additional clause, which pleads the statute of limitation, as to the new matters, pleaded in plaintiff's amended petition. The cause was tried to a jury which returned a verdict for plaintiff for $700, judgment was rendered for the amount of the verdict, and from this judgment the defendant has perfected its appeal.
There are a number of assignments of error, many of which we think are without merit.
The defendant complains of the action of the court in permitting the plaintiff to amend his petition. This we think is not well taken. It is true the amended petition pleads an additional cause of action, but growing out of the same transaction, and under section 5679, Compiled Laws 1909, as construed by this court in Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co., 26 Okl. 13, 108 P. 387, this was permissible. In this opinion Justice Hayes quotes with approval, and adopts the views expressed in Culp v. Steere et al., 47 Kan. 746, 28 P. 987, which, among other things, says:
"The statute does not provide that the amendment shall not change the form of action or cause of action, but it simply provides that the amendment shall not 'change substantially the claim or defense.' "
We think the amendment was properly allowed.
The defendant further...
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