St. Louis-San Francisco Ry. Co. v. King

• Decision Date: 04 May 1954
• Docket Number: LOUIS-SAN,No. 35834,35834
• Citation: 278 P.2d 845
• Parties: ST.FRANCISCO RAILWAY COMPANY, a foreign corporation, Plaintiff in Error, v. George S. KING, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 845

278 P.2d 845

1954 OK 144

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a foreign corporation, Plaintiff in Error, v. George S. KING, Defendant in Error.

No. 35834.

Supreme Court of Oklahoma.

May 4, 1954.

Rehearing Denied Dec. 7, 1954.

Application for Leave to File Second Petition for Rehearing

Denied Dec. 21, 1954.

Syllabus by the Court.

1. Granting or refusing a motion for retrial by reason of anything occurring during trial of a case is within the sound discretion of trial judge and his ruling thereon will not be disturbed unless there has been abuse of discretion.

2. A motion for a new trial is addressed to the sound legal discretion of the trial court, and the granting or refusal of same will not be disturbed on appeal, in the absence of abuse of discretion.

3. In an action for damages for personal injuries sustained, the court will not set a judgment aside on the grounds the damages are excessive unless the amount awarded clearly shows that the jury was actuated by passion, partiality, or prejudice. Record examined and held, amount awarded does not clearly show jury to have been actuated by passion, partiality or prejudice.

4. In this case elements and measure of damages are matters governed by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., but the amount of damages to which plaintiff is entitled is a question of fact for the jury to decide in accordance with our modes of procedure, and not this court.

5. Record examined and held that the jury's verdict and judgment based thereon is sustained by the evidence and is not contrary to law.

James L. Homire, St. Louis, Mo., Satterfield, Franklin & Harmon, Oklahoma City, for plaintiff in error.

Horsley, Epton & Culp, Wewoka, Bishop & Driscoll, Seminole, for defendant in error.

JOHNSON, Vice Chief Justice.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, et seq. with verdict and judgment for plaintiff in the amount of $100,000. Defendant has appealed.

Plaintiff, George King, was employed in interstate commerce by the defendant, St. Louis-San Francisco Ry. Co., a Missouri Corporation, on March 10, 1950, as a section laborer. While acting within the scope of his employment, unloading cross timbers, weighing about nine hundred (900) pounds each he was totally and permanently injured when a cross timber, leaning against the gondola car, shoved by a fellow employee, fell upon him.

Negligence of defendant is clearly evident from the record and inheres in the judgment. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411.

Under Sec. 56 of F.E.L. Act, supra, plaintiff had the right to sue in a Federal District Court or in a State Court. Miles v. Illinois Central R. R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104. Plaintiff having chosen courts of this state, the action must be prosecuted in accordance with our modes of procedure. Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961, Ann.Cas.1916E, 505, L.R.A.1917A, 86 Okl.Anno.Conf.Laws, A.L.I., Sec. 592, Pocket Supp.; and, we have authority to examine the record, weigh the evidence and to determine whether the verdict and judgment should stand or whether it should be set aside and the cause retried, Parthun v. Elgin, J. & E. Ry. Co., 325 Ill.App. 408, 60 N.E.2d 464, and cases cited therein. However, this court's action above referred to is subject to the limitations found in Title 22 O.S.1951 § 1068, the harmless error statute, which provides:

'No judgment shall be set aside or new trial granted by any appellate court of this State in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.'

It is first contended by defendant that the court erred in permitting the plaintiff to prove the safety rules of defendant, because they were not pleaded; in permitting amendment to plaintiff's petition at the close of the evidence; and in overruling defendant's motion for a continuance following the amendment.

The alleged error of permitting plaintiff to amend his petition alleging company's specific safety rules, violation of the safety rules and allowing plaintiff to prove the safety rules is without merit. The record discloses that defendant, in its answer, alleged contributory negligence and the court charged the jury on this issue. To negative the contributory negligence charge, the railroad's rules for the safety of its employees were properly admitted. Federal Employers' Liability Act, § 1 et seq., 45 U.S.C.A. § 51 et seq. New York Central R. Co. v. Verpleatse, 116 Ind.App., 59 N.E.2d 916. Nickell v. Baltimore & Ohio R. Co., 347 Ill.App. 202, 106 N.E.2d 738.

The amendment to plaintiff's petition setting out defendant's specific safety rules and alleged violation thereof, if error, was harmless. Sec. 1068, 22 O.S.1951, supra, Davis v. Jackson, 192 Okl. 15, 132 P.2d 923, Sims v. First Nat. Bank of Mangum, 175 Okl. 180, 51 P.2d 820.

It is next argued under this contention that plaintiff was also erroneously permitted to amend his petition so as to increase the amount claimed under the various items of alleged damages from a total of $88,538 to $218,895.65.

The record discloses that plaintiff notified defendant by letter several days before the trial of the suggested amendments and enclosed a copy of the proposed amendments. In the first paragraph of the letter it is said:

'Enclosed find copy of amendment to petition to conform to the proof. The original will be offered during the trial or at the close of the evidence.'

The letter referred to prior discussions by telephone of the proposed amendments. Under these circumstances, defendant, obviously, was not surprised or misled. This amendment did not affect the substantial rights of defendant or substantially change plaintiff's claim. Under our civil procedure, the order permitting the amendment was justified in the furtherance of justice. Secs. 311, 312 and 317, 12 O.S.1951, Ganas v. Tselos, 157 Okl. 107, 11 P.2d 751; Federal Life Ins. Co. v. Bartlett, 183 Okl. 189, 80 P.2d 587. The error, if any, does not warrant reversal of judgment if not affecting substantial rights of complaining party. Id.

Defendant next complains of misconduct of the jury and alleges reversible error of the trial court in refusing to grant a mistrial on account of said misconduct.

The conduct referred to is that after the jury was selected, and the trial had started, counsel representing the defendant learned that one of the jurors, Mrs. Marjorie Phillips, who, incidently, was foreman of the jury, formerly lived as a paying roomer and boarder in the home of plaintiff's principal counsel, Homer Bishop. It is argued that this juror with others was closely examined on voir dire to determine whether there was any relationship between the jurors, parties and counsel that would prevent them from serving as fair jurors; that Mrs. Phillips failed to disclose this relationship to counsel, and that immediately after defendant learned of such relationship to counsel, a motion for mistrial was filed and overruled with exceptions; that during the progress of the trial a juror, Jennie Johnson, was seen by defendant's counsel and the trial judge in the court room in conversation with the plaintiff, his wife, and his two small children; that following this incident, defendant again filed a motion for mistrial which was also overruled with exceptions; that following the verdict it was brought to defendant's attention that another juror, Merle Belford, and a brother of plaintiff's counsel, Homer Bishop, married sisters, conceding however, that such relationship did not disqualify the juror, but contending that it was the duty of the juror to disclose this fact on his voir dire examination, which he failed to do.

The record discloses that the jurors were sworn and admonished not to discuss the case with anyone or to allow the case to be discussed in their presence and no violation of this instruction is shown.

The prospective jurors were polled by the attorneys relative to their qualifications to serve as jurors. No intentional concealment of any relationships or business dealings is shown. The causes claimed would not ordinarily disqualify the jurors. There is nothing in the record to indicate but that these facts could have been ascertained by the voir dire examination had defendant propounded questions to that effect, and had defendant done so, the objectionable jurors could have been excused by peremptory challenges.

A motion for a new trial is addressed to the sound legal discretion of the trial court, and the granting or refusal of same will not be disturbed on appeal, in the absence of abuse of discretion, Hartman v. Dunn, 186 Okl. 9, 95 P.2d 897. Under the circumstances herein, we cannot say that the trial judge abused his discretion in refusing to grant a new trial on the grounds of jury's misconduct.

Defendant's third contention that the court erred in permitting an actuary testifying for plaintiff to testify as to the present value of a given sum, basing his calculation partially on various mortality tables is without merit.

The factual situation in the case at bar is substantially the same as in Jones v. Eppler, Okl.Sup., 266 P.2d 451, and we think that case is determinative of this issue, notwithstanding that the defendant relies upon Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, which is a death case, not a suit for personal injuries; therefore, it is not in point.

Our holding in the Jones v. Eppler case, supra, on this point is in...