Yellow Cab Operating Co. v. Spelce, Case Number: 25708

• Court: Supreme Court of Oklahoma
• Writing for the Court: PER CURIAM.
• Citation: 61 P.2d 672,177 Okla. 571,1936 OK 597
• Decision Date: 06 October 1936
• Docket Number: Case Number: 25708
• Parties: YELLOW CAB OPERATING CO. v. SPELCE

1936 OK 597
61 P.2d 672
177 Okla. 571

YELLOW CAB OPERATING CO.
v.
SPELCE

Case Number: 25708

Supreme Court of Oklahoma

Decided: October 6, 1936

Syllabus

¶0 1. APPEAL AND ERROR - Harmless Error in Instruction on Measure of Damages for Personal Injury Where Verdict not Excessive.

In a suit in damages for personal injury, where the amount recovered was not excessive, error in instruction on the measure of damages is harmless.

2. SAME - Failure to Assign as Error That Verdict Was Excessive.

In an action for personal injuries, where there is no assignment of error that the verdict was excessive, error in instruction relating to the measure of damages is harmless.

3. SAME - Failure to Request Correct Instruction.

Where there is no evidence of permanent injury, and the court instructs the jury that they may take into consideration such injury, and the verdict returned is not excessive, and the defendant failed to ask for a correct instruction, he cannot complain on appeal and the error will be considered as harmless.

4. SAME - Lack of Showing That Verdict Is Excessive.

Where there is evidence to sustain the verdict, as to the amount, and nothing appears in the record tending to show that the minds of the jury were inflamed so as to induce the belief that the Jury was actuated by passion, prejudice, partiality, or corruption, the verdict will not be set aside, upon appeal, as excessive.

5. APPEAL AND ERROR - Harmless Error - Statute.

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 grounds 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.

6. DAMAGES - Amount of Damages for Personal Injuries - Province of Jury.

There can be no absolute standard to measure damages for personal injuries, and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award.

Appeal from District Court, Oklahoma Comity; R.P. Hill, Judge.
Action by Georgia V. Spelce against the Yellow Cab Operating Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Dudley, Hyde, Duvall & Dudley, for plaintiff in error.

Owen F. Renegar and Everest, McKenzie & Gibbens, for defendant in error.

PER CURIAM.

¶1 Action was commenced in the district court of Oklahoma county, Okla., by Georgia V. Spelce, plaintiff, against the Yellow Cab Operating Company, a corporation, defendant, to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligent operation of the defendant company's taxicab, driven and operated by an employee of the defendant company, while the plaintiff was a passenger therein.

¶2 Petition was filed on the 15th day of November, 1932, alleging that defendant company is a corporation, organized and existing under and by virtue of the laws of the state of Oklahoma, and engaged in the operation of busses and taxicabs in the city of Oklahoma City, Okla., and vicinity; that on the 15th day of September, 1932, for a valuable consideration paid by the plaintiff, the defendant agreed and undertook to safely transport the plaintiff from her home, 1441 West Third street, Oklahoma City, to her place of employment, the Eugene Field school, where she was employed in the cafeteria of said school, and while en route from plaintiff's home to said school, at the Rock Island crossing on Douglas street, between Third and Fourth streets, the driver of defendant company's taxicab drove and operated said taxicab in a rough, careless, and negligent manner, throwing the plaintiff from her seat against the door of the taxicab, and out of said door onto the pavement, resulting in cuts and bruises upon the body and person of the plaintiff. Plaintiff alleges that her head was badly injured; that her back, shoulders, and legs were bruised and injured; that as a further result of said injuries she suffered a miscarriage, and that her female organs have been permanently injured; that at the time of said injuries she was 41 years of age and in good health and was taking care of her household duties; that she was earning the sum of $7 per week at the school cafeteria for, one-half time work; that her services were reasonably worth the sum of $14 per week; that by reason of said injuries she was unable to continue her employment or to take care of her household duties, and was rendered unable to perform physical manual labor; that she suffered and still suffers great and excruciating bodily pain and suffering, and has undergone great mental suffering and worry; that she has been deprived of her means of earning a livelihood; that she has been permanently injured and sustained damages in the sum of $40,000; that in addition thereto she was put to necessary and reasonable expense in endeavoring to be cured in the further sum of $500, and prays judgment for the sum of $40,500.

¶3 To this petition defendant filed a general denial. The case was tried to a jury, commencing on the 6th day of November, 1933, resulting in a verdict for the plaintiff for the sum of $3,000. Timely motion for new trial was filed by the defendant, which was by the court overruled, and defendant appeals.

¶4 The defendant in the trial court is the plaintiff in error herein, and the plaintiff in the trial court is the defendant in error herein, and will be referred to herein as they appeared in the trial court.

¶5 For reversal the defendant sets out eleven assignments of error in its petition in error, but urges only four assignments of error, and states in its brief as follows:

"We present assignments of error 1, 3, 8 and 10, and argue them under one proposition of law."

¶6 The one proposition of law referred to by the defendant is stated by the defendant as follows:

"Where the injury is subjective, to warrant the giving of an instruction authorizing a jury to return a verdict for future pain and suffering, there must be produced evidence by expert witnesses that the plaintiff, with reasonable certainty, will experience future pain and suffering as a result of the injury; and there being a total lack of such evidence in this record, it was error for the court to give instruction No. 16, in which lie told the jury they could consider future pain and suffering in fixing the, amount of plaintiff's recovery."

¶7 The assignments of error presented by the defendant are as follows:

(1) That this court erred in overruling its motion for a new trial.

(3) That this court erred in refusing to give its requested instruction No. 6.

(8) That this court erred in its instructions to the jury in giving instruction No. 16.

(10) That this court erred in overruling its special demurrer to the evidence

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