Williamson v. Prairie Oil & Gas Co.

• Decision Date: 06 February 1915
• Docket Number: 19248.[d1]
• Citation: 146 P. 316,94 Kan. 238
• Parties: WILLIAMSON v. PRAIRIE OIL & GAS CO.
• Court: Kansas Supreme Court

146 P. 316

94 Kan. 238

WILLIAMSON v. PRAIRIE OIL & GAS CO.

No. 19248.^[d1]

Supreme Court of Kansas

February 6, 1915

Syllabus

It is not error to incorporate into the court’s instructions the plain and simple language of the pleadings, when the issues are fairly presented to the jury by the instructions as a whole.

Unless an instruction is misleading, error cannot be predicated upon it when it is supported, amplified, and explained to the jury by other instructions.

Error cannot be predicated upon an instruction that the jury may find for the plaintiff in any sum not exceeding the amount prayed for, when the jury only award half that sum on sufficient evidence.

Future pain and suffering, as an incident to physical injuries, is a proper element of damage, following City of Arkansas City v Payne, 80 Kan. 353, 102 P. 781.

Appeal from District Court, Montgomery County.

Action by J. W. Williamson against the Prairie Oil & Gas Company, a corporation. From judgment for plaintiff defendant appeals. Affirmed.

W. S Fitzpatrick, J. B. F. Cates, and N.E. Van Tuyl, all of Independence, for appellant.

Charles D. Welch, of Coffeyville, and George H. Wark, of Caney, for appellee.

OPINION

DAWSON, J.

This is an appeal from an award of $2,500 in favor of J. W. Williamson, an employee of the Prairie Oil & Gas Company, for injuries sustained while employed by that company in the construction of a pipe line. On December 10, 1912, while appellee and three other men, under the charge of a foreman, were carrying a pipe about 20 feet long and weighing about 700 pounds, the appellee’s fellow servant, one Harvey James, who was not physically fit for such heavy work, and who was carrying the rear end of the pipe opposite Williamson by the means of a pair of callipers, suddenly dropped his end of the callipers, thus jerking Williamson to the ground and rupturing him.

The foreman at the time of the accident was Charles Badjent, although the appellant had another foreman, John Johnson, who was probably Badjent’s superior.

James, the incompetent servant, was first employed the day before the accident without any inquiry into his fitness. There is some discrepancy in the evidence as to whether Johnson or Badjent employed James, but it is clear that they both had authority to give orders on the work, to hire and discharge men, and to change the men from one part of the work to another.

It is also clear that on the afternoon of December 9th, and the following forenoon, on which the accident occurred, the foreman in charge had notice of James’ incapacity. About half an hour before the accident to Williamson, he complained to Badjent, the appellant’s foreman then in charge, about James dropping the pipe. The other men on the work also complained; and Badjent promised to change James. Appellee’s testimony, which is corroborated, in part reads:

"Badjent told me he would get another man. I certainly believed what he said when he said he would get another man. * * * It was very uncomfortable to be jerked about that way."

Part of James’ testimony reads:

"John Williamson complained to Charley Badjent about my dropping the pipe. Charley Badjent told Williamson that he would get another man as soon as he could find one. I dropped the pipe at about 11 o’clock. Williamson had the other end of the pipe at that time. At that time Williamson made a complaint about being hurt. He said when I dropped the pipe it just tore him in two."

It was also proved that appellee had spent considerable sums of money for trusses, and expenses in going to Kansas City for an operation for hernia; that he had been unable to do much work for a year; that he continued up to the time of the trial to have pain and discomfort; and that before the injury he was an active, robust man weighing 170 pounds, and at the time of the trial, a year after his injuries, he weighed only 127 pounds.

The only errors assigned in this appeal relate to the court’s instructions to the jury. On the first it is complained:

"(1) That the trial court erred in reading to the jury the pleadings of the respective parties, and then stating to the jury that ‘within these allegations and counter allegations is contained the issue for you to try and determine by your verdict in this case.’ Record, p. 131.

(2) That the court erred in not stating and defining to the jury the issues to be tried and determined."

Counsel for appellee answer this criticism by saying that the court did not read the pleadings, and that the record does not show that they were read to the jury. An inspection of the pleadings does show that they were closely paraphrased by the court in stating the issues to the jury, but it does not appear that any obscure or technical language of the pleadings was incorporated in the instructions.

In Railway Co. v. Eagan, 64 Kan. 421, 67 P. 887, it was held to be error to send to the jury lengthy, prolix, and redundant pleadings which were full of tautology and repetition.

In Stevens v. Maxwell, 65 Kan. 835, 70 P. 873, it was held material error to send pleadings which were laden with prolix and intricate averments to the jury.

In Myer v. Moon, 45 Kan. 580, 26 P. 40, the court referred the petition to the jury, indicating the paragraphs for their consideration by pencil marks. While this and the foregoing cases cited disapproved the practice of sending the pleadings to the jury, it was not considered reversible error because the court did define the issues.

Another pertinent case is Railway Co. v. Sternberger, 8 Kan.App. 131, 134, 54 P. 1101, 1102, where it was said:

"It is not reversible error for the court in its instructions, after reciting to the jury the nature of the cause of action and the issues to be determined by the jury, and what it is necessary for the plaintiff to prove thereunder in order to recover, to add: ‘The grounds of negligence claimed by the plaintiff are more fully set forth in the petition, to which you are referred.’ "

In the opinion it was said:

"The fourteenth contention of counsel is that the court (Judge Alfred W. Benson) erred in using certain language in giving its instructions to the jury. After reciting to the jury the nature of the cause of action and the grounds of negligence complained of by the plaintiff, it added: ‘The grounds of negligence claimed by the plaintiff are more fully set out in the petition, to which you are referred.’ The contention is that it was the duty of the court to construe the pleadings. The court did construe them. The court stated to the jury very clearly and concisely what the issues were, and what it was necessary for the jury to find, in order that the plaintiff might recover. This reference to the petition, under the circumstances, could not...