St. Louis & S. F. R. Co. v. Hardy

• Decision Date: 26 January 1915
• Docket Number: 5113.
• Citation: 146 P. 38,45 Okla. 423,1915 OK 58
• Parties: ST. LOUIS & S. F. R. CO. v. HARDY, DISTRICT JUDGE.
• Court: Oklahoma Supreme Court

146 P. 38

45 Okla. 423, 1915 OK 58

ST. LOUIS & S. F. R. CO. v. HARDY, DISTRICT JUDGE.

No. 5113.

Supreme Court of Oklahoma

January 26, 1915

Syllabus by the Court.

Where the findings and conclusions of the Supreme Court on appeal cover the entire case made by the pleadings and evidence in the trial below, and nothing is left open for further examination in the trial court, and the case is simply reversed without directions, it is the duty of the trial court to enter judgment in accord with the opinion; and such court is without jurisdiction to permit amendments to the petition, alleging an entirely different state of facts as the direct and proximate cause of plaintiff's injuries and which facts have been adversely determined by the opinion of this court.

All questions open to dispute and either expressly or by necessary implication decided on appeal to this court will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to re-examination.

In the absence of exceptional facts, it is the duty of parties to put in issue the entire claim or defense available when the case is tried; and a failure to do so cannot be remedied by amendment and repeated trials after appeal to and decision by this court.

It is the province of this court to construe its own mandate in connection with its opinion, and, if it finds that the trial court has misconstrued the same, the mistake may be corrected by writ of mandamus from this court.

Mandamus by the St. Louis & San Francisco Railroad Company against Summers Hardy, Judge of the Twenty-Seventh Judicial District of Oklahoma. Writ issued.

W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt and E. H Foster, both of Oklahoma City, for plaintiff.

Evans & Hardison, of Hugo, for defendant.

BROWN J.

This is an action wherein the plaintiff by mandamus seeks to compel the defendant to enter judgment in its favor in a cause pending in the district court of Choctaw county wherein Frank H. Mayne is plaintiff and this railroad company is defendant.

In the district court the plaintiff sued to recover damages for personal injuries alleged to have been sustained by him while working as a carpenter in the employ of the railroad company. A trial was had which resulted in a verdict and judgment in plaintiff's favor for the sum of $500. The railroad company appealed to this court, and the case was reversed on the ground that the evidence failed to show liability of the railroad company. Upon return of the mandate to the district court plaintiff therein filed an amended petition setting up new and different facts alleged to be the cause of the injuries sustained by him. The defendant railroad company moved to strike the amended petition, and asked the court to enter judgment in its favor. The motion was refused by the court, and exceptions taken by defendant. May 12, 1913, the railroad company filed in this court its petition praying for mandamus to the judge of the district court of Choctaw county commanding him to enter judgment in its favor in said original cause in accordance with the judgment of this court in the appeal, or to appear in this court and show cause why he had not done so. An alternative writ was accordingly issued by the Chief Justice of this court May 12, 1913.

May 20, 1913, the respondent filed in this court his answer to the alternative, alleging therein, as cause why he did not enter judgment in favor of the defendant railroad company, that since the filing of the mandate in that court plaintiff had filed an amended petition in the cause, a copy of which petition was attached to respondent's answer; and respondent prayed further specific directions by this court from the facts as alleged in his answer. The case is now before this court upon the petition for mandamus, the alternative writ, and the respondent's answer thereto; and for a full understanding of the case it will be necessary to refer to the judgment of this court on the appeal in the main case, viz., St. L. & S. F. R. Co. v. Mayne, 36 Okl. 48, 127 P. 474, 42 L. R. A. (N. S.) 645.

The nature of plaintiff's case, as made by his pleadings, together with the evidence adduced upon the trial and the findings and conclusions of this court thereon upon the appeal, are correctly stated in the opinion of this court by Commissioner Brewer as follows:

"This suit was filed by Frank H. Mayne in the district court of Choctaw county against the St. Louis & San Francisco Railway Company on October 8, 1909, for the recovery of damages for personal injuries alleged to have been caused by the negligence of the railroad company in providing plaintiff with a defective tool with which to work. It appears that plaintiff was a carpenter by occupation, having had some 12 years' experience in such trade; that he had worked for defendant about 3 years, and in the repair shops at Hugo for more than a year; that on the day of the injury plaintiff undertook to bore an inch hole through a piece of timber 2 inches thick 10 inches wide and 25 inches long, with a hand-boring machine belonging to defendant and found there in the shop. The only negligence claimed, shown, or attempted to be shown is that the auger bit which worked in this hand-boring machine was dull, and the cutting edge of the bit considerably worn down from having been sharpened with a file. It is not claimed that the machine or the bit were otherwise out of repair. It is shown that the machine is a simple contrivance, no more complicated in its mechanism than the ordinary brace and bit. While using it upon the day in question, the plaintiff lay a heavy piece of timber upon two wooden sawhorses 23 inches high. Upon this piece of timber he placed the smaller piece which he was working upon. On top of that he put the boring machine, sitting astride it, and clamping it with his legs. In operating the machine, holding to its wooden handles, he pulled with force in turning it, which caused it to move under him and he toppled over and fell, striking his side against a doorknob in close proximity to where he was working. Plaintiff recovered a judgment for $500, to review which this proceeding in error was instituted. At the conclusion of plaintiff's evidence defendant demurred thereto, which being overruled, it offered its testimony, and at the close of all the evidence asked the court to give the jury peremptory instruction in its favor. The refusal of the court to so charge the jury is the serious question presented here. This involves the doctrines of negligence and inspection as applied to a master furnishing the ordinary simple tools used in common labor to his servant."

After citing numerous authorities bearing upon the question stated, Judge Brewer says:

"It is to be borne in mind that in the case at bar the hand machine was in perfect condition, except as to the bit itself, which was worn and dull. Nothing broke; nothing failed to work. The dullness of the bit merely caused it to work tighter in the wood, causing an expenditure of more strength by the workman. In exerting the necessary force, the workman fell off the timbers, striking against the knob of a door standing ajar against the wall of the building. The plaintiff admits that he apprehended no such accident. Could it be said

that such a result from boring a hole with a dull auger could have been within the bounds of the master's contemplation? We cannot think so. And this leads us to conclude that there was no evidence in the case tending to show a violation of any duty the master owned to the servant, and therefore the case should be reversed."

In reversing the case this court did not direct that it be remanded for any further proceedings in the trial court.

The question now before this court is: Was it the duty of the judge of the district court upon return of the mandate to enter judgment in said cause for the defendant railway company, or was he authorized to permit the plaintiff to amend his original petition by alleging, as the direct and proximate cause of his injuries, a broken tooth or cog in the hand-boring machine, instead of the dull bit, as alleged and claimed in his petition upon which the case was first tried? Against the right of the plaintiff below to file the amended petition in question we quote from the case of McKinney v. State, 117 Ind. 26, 19 N.E. 613, as follows:

"In order that there may be an end to litigation, questions which were open to dispute, and were either expressly or by necessary implication decided on the first appeal of a cause, will not be open for review on a second appeal."

In the case of Headley v. Challiss, 15 Kan. 602 (2d Ed. 453), Mr. Justice Brewer, speaking for the court, says:

"A party may not settle the law of his case by piecemeal before this court, any more than he may settle the facts in that way before the district court. When the case is tried, he must be prepared to present his entire claim, or his entire defense."

In a later case in the Supreme Court of Kansas (A. J. Harwi Hardware Co. v. Klippert et al., 73 Kan. 783, 85 P. 784) the court says:

"Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of re-examination. 'This rule extends not merely to all questions actually presented by counsel, but to all questions existing in the record, and necessarily involved in the decision.' "

...