Henryetta Coal & Mining Co. v. O'Hara

Opinion by DEVEREUX, C. (after stating the facts as above). A motion has been made in this case to dismiss the appeal because the case-made contains no record of any notice ever having been served upon the defendant in error, or any of his counsel, of the time and place when the case-made would be presented to the trial judge for settlement and signing, because the defendant in error never waived the right of notice of the time and place when the case-made would be presented to the trial judge for settlement, and no amendments to the case-made were suggested by the defendant in error, and no notice was ever served upon the defendant in error, or any of his counsel, of the time and place when the case-made would be presented for settlement, and neither the defendant nor his counsel were present when the-case-made was signed and settled. This motion must be overruled. It appears in the case-made as follows: “It is hereby stipulated by and between the parties hereto that the foregoing case-made contains a full, true, correct, and complete transcript of all the proceedings had in said cause, including all motions, orders, pleadings, evidence, and judgment had in said cause, and that the same is a full, true, correct, and complete case-made. “[Signed] ROSS & MOSS, “Attorneys for Plaintiff in Error. “Stanfield & Cochran, and I. H. Cox, “Attorneys for Defendant in Error.” The stipulation in the above form is sufficient to authorize the trial judge to settle and sign the case-made *174 without further notice. The object of the notice is to give the defendant in error an opportunity to make any objection to its settlement, and when he has stipulated that the case-made is a full, true, and perfect case-made, to require a further notice that the trial judge should' certify to what is already agreed, would be a pure formality. The cases cited by defendant in error are not in point. Thompson v. Fulton, 29 Okla. 700, 119 Pac. 244, was dismissed because a joint judgment was rendered against two defendants, and as no extension of time was asked or granted to make* and serve a case-made on one of them, and after the expiration of the time to serve it the case-made was presented for settlement without notice to such joint defendant, and as the time had expired within which to serve the case-made, and no extension had been granted as to the joint defendant, it was held that no valid case-made could be settled as to him. Harrison v. Penny, 28 Okla. 523, 114 Pac. 734, is also cited; but we have examined the original record in this case and find that' the ■ stipulation was only signed by counsel for the plaintiff in error. The case therefore is not in point. However, the question now under consideration was passed upon by this court adversely to the contention of the defendant in error in Pioneer Tel. & Tel. Co. v. Davis, 26 Okla. 205, 109 Pac. 299, and in First Bank of Maysville v. Alexander, 47 Okla. 459, 149 Pac. 152, and in Charles v. Hillman, 48 Okla. 549, 150 Pac. 461, in which last case it is said: “Where notice of the time and place of signing and settling the case-made is not given or waived, the appeal will be dismissed, unless counsel have stipulated in the case that it is true and correct.” *175 The motion will, therefore, be denied. Coming to the merits of the case, the first assignment of error is that the court in its charge did not correctly state the issues to the jury; but an examination of the entire charge shows that the. jury were specially instructed on every issue raised by the pleadings, and we think this 'is sufficient. C., R. I. & P. Ry. Co. v. Bentley, 43 Okla. 469, 143 Pac. 179. As will be seen from a summary of the pleadings and evidence above set out, the cause was tried on conflicting theories and evidence; each party introducing evidence tending to support his theory of the case and the allegations of his pleadings. On the part of the plaintiff, it was contended that, while he was employed as mine boss originally, yet he was not allowed to perform the duties of the office, but the defendant authorized its superintendent to take charge of the duty of keeping the entries in a safe condition, and providing the shelter holes, and in support of this the plaintiff testified that he discovered the dangerous condition of the entry in which he was injured on the second day of his employment, and reported it to. Haynes, who said that he would look after these entries and clean them up on the first idle day, and that Haynes took the power away from him to superintend this part of the mine, and in consequence of which he told Haynes that he would go back to the per diem pay instead of a monthly salary. The court in its sixth, seventh, fourteenth, and sixteenth instructions fairly gave to the jury the plaintiff’s theory, and to these instructions the defendant below excepted. On the other hand, the defendant contended that the plaintiff was the mine foreman, as provided by the laws of Oklahoma (Rev. Laws 1910, section 3983), and that if there was any defect in the *176 entry or shelter hole he was entirely at fault, and that he could not recover in this action; that, under the law above cited, he was given complete authority and control of these entries, and it was his duty to close them if they were not kept in a safe and proper manner. The evidence of the defendant conflicted squarely with the evidence of' the plaintiff on this question. In addition, the defendant introduced evidence tending to show that .the plaintiff was guilty of contributory negligence, and that, as a matter of fact, there was no negligence on the part of the defendant. The defendant’s view of the case was fairly presented to the jury by instructions 4, 9, and 11. It is charged in the brief of the plaintiff in error that this charge is conflicting, and therefore must have misled the jury; but after .a careful consideration thereof we cannot agree with this contention. As" we have said above, this case was tried on diametrically opposing theories, and on conflicting testimony, and in its charge the court necessarily presented these conflicting views to the jury with instructions to guide them in whatever view they should take of the evidence. Objection is also made to the fifteenth paragraph of the charge in regard to the measure of damages. We think this charge is substantially correct. In Union Pacific Ry. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501, it is said: “It is next claimed that the trial court erred in instructing the jury that if they found for the plaintiff they could use their common knowledge in assessing his damages, without evidence as to the amount thereof. The. language of the instruction may perhaps be criticized, but the instruction, as applied to this case, was neither erroneous nor misleading. In such a case as this the jury may estimate the pecuniary damages from the *177 facts proved, in connection with their own common knowledge and experience in relation to matters of common observation. * * * How this pecuniary damage is to be measured or what shall be the amount, must be left largely to the discretion of the jury. The court undoubtedly intended by the instruction to inform the jury, and they must have so understood, that if they found for the plaintiff they could use their own common knowledge in assessing his damages, without direct evidence of the specific pecuniary loss. * * * It is impracticable to furnish direct evidence of the specific loss.” In Railroad Co. v. Barron, 5 Wall. 90, 18 L. Ed. 591, it is said: “The damages in these cases, whether the suit is in the name of the injured party, or, in case of his death, under the statute, by the legal representative, must depend very much on the good sense and sound judgment of the jury.” See, also, Waters-Pierce Oil Co. v. Deselms, 18 Okla. 107, 89 Pac. 212: Id., 212 U. S. 159, 53 L. Ed. 453. The next assignment of error is in allowing evidence of the obligation to pay doctor’s bills and for drugs when there is no allegation in the petition to support the claim, taken in connection with the charge that the plaintiff might recover such damages as he has proven. This was error, but it does not necessarily require a reversal of the judgment. In Revel v. Pruitt, 42 Okla. 696, 142 Pac. 1019, it is said: “The proof erroneously admitted, as to the amount of these items of damage, is certain and specific as to the amount; the sum being $200. While of course we do not know that the jury awarded the full sum shown by *178 the evidence on this account, yet we shall assume that it did, giving the defendants, by such assumption, the benefit of the doubt; and will offer plaintiff the right to enter a remittitur within 30 days after the filing of this opinion in the sum of $200, thus curing the defect and striking out the erroneous amount awarded in the verdict.” In the case at bar there was evidence from which the jury might have added $500 to the amount of the plaintiff’s recovery, on account of the improperly admitted evidence. While,. as in the Revel Case, we cannot say that they did, yet we will follow the precedent set in that case. Complaint is also made that the damages awarded by the jury were so excessive that it of itself. disclosed that the verdict was rendered under the influence of passion and prejudice- against the plaintiff in error. The trial judge approved this verdict, and by so doing necessarily found that the jury were not influenced by passion or prejudice. In Waters-Pierce Oil Co. v. Deselms, 18 Okla. 108, 89 Pac. 212, in passing on the same question, the court says: “With reference to the first ground, in view of the fact that no special evidence of passion or prejudice other than the amount of the verdict has been pointed out, the determination of the trial court adversely to this ground was the exercise of a better judgment than is possible to be entered here.” See, also, Rhyne v. Turley, 37 Okla. 159, 131 Pac. 695. The case of Reed v. C., R. I. & P. R. R. Co., 79 Iowa, 188, 37 N. W. 149, is in some respects like the case at bar. The court says: *179 “The plaintiff at the time of the injury was 65 years of age. He was a farmer by occupation, and as we infer, he is the owner of the farm on which he resides! By the collision he was thrown headlong from the wagon, and two or three of his ribs broken toward the back near the shoulder blade. The broken ribs punctured his lung, so that air escaped therefrom, and inflated the surrounding tissues.” The jury in this .case returned a verdict for $8,250, and the court held that the same was not excessive. We cannot sustain the assignment of error. Before closing, we wish to call the attention of the counsel to rule 8 of this court (38 Okla. vi, 137 Pac. ix), providing that in citing cases from courts of this state counsel are- required to cite the volume and page of the official state reports, and such failure to comply with this rule will render briefs subject to be stricken from the- files. This rule is not being complied with as strictly as it should be, and we wish to call attention to the fact that under the rule briefs which do not comply therewith are liable to be stricken. We therefore recommend that the judgment be affirmed upon the entering of a remittitur in this court of $500 within 30 days after the filing of this opinion, and, in case such remittitur is not entered within said time, that this judgment be reversed, and the case remanded for a new trial. By the Court: It is so ordered.