*1 аl., BREADY et Trustees of the John M. Kelley, Trust, Oliver G. Revocable d/b/a Clyde Company, H. O. G. Grindstaff, Error, Plaintiffs in TIPTON,
A. C. Guardian of the Estate of Joe Hampton, Minor, M. Defendant in Error.
No. 40803.
Supreme Court of Oklahoma.
Oct. *2 speed
“(f) driving In in excess per hour in of 65 miles violation of O.S.1959, 121.3(d). section Title speed “(g) at a not careful driving *3 prudent under conditions then existing in violation of Title and there * *” Wilson, Batchelor, 47, O.S.1959, 121.3(a). W. Robert section W. James Durant, plaintiffs in error. The defendant Grindstaff’s answer con- MacDonald, Durant, general specific Jr., allega- for defend- tained a denial and D. S. Hampton boy’s injuries tions that the were ant in error. by proximately “negligence caused his own contributory negligence” in the fol- BLACKBIRD, and/or Justice. lowing particulars: error, referred hereinafter Defendant in turned “a. Plaintiff’s ward plaintiff, instituted this action to as bicycle error, course and moved from a dirеct against plaintiffs in hereinafter “defendants”, roadway upon the to the left when such by referred name as not be movement could made with damages the total sum to recover safety. $195,520.00, alleged of certain on account ward, injuries 10-year-old bicy- “b. Plaintiff’s ward turned his 30, 1960, he, July when and the received on path cle into defendant’s car without bicycle by riding, were struck an he was giving appropriate signal to indicate by the defend- automobile owned driven liis intention turn at least 100 feet Grindstaff, ant, Clyde alleged agent H. turning. before doing G.
the defendants business as O. riding “c. Plaintiff’s ward was Kelley Company, Highway No. & U. S. bicycle upon roadway place at a Durant, 70, approximately 4 miles west of path adjacent where a usable to the trip Oklahoma, driver while said was on roadway provided. Globe, Elizabethton, Tennessee, bicycle plaintiffs “d. Arizona. riding equipped ward was as proxi- petition alleged Plaintiff’s that the required by law. negligence mate cause collision was bicycle “e. Plaintiff’s ward rode the respects : following defendants directly into the left front fender of keep “(a) failing proper look- defendant’s car with reckless disregard out. safety. to his own “(b) failing proper In to exercise disregarded “f. Plaintiff’s ward precaution upon child a road- sounding of defendant’s horn at a dis- way by 47, O.S.1959, required Title as tance more than 200 feet from the Section 125.14. point of collision. “(c) failing In to have the automo- “g. yield Plaintiff’s ward failed to bile under control as such en- right way defendant, crossed stopped able the within same to over the center line onto north side оf required assured clear distance ahead as highway and collided with defend- by 47, O.S.1959, 121.3(a). Title section ant’s car in the line defendant’s ” * * * traffic. “(d) failing In to sound a horn as required O.S.1959, by Title Section In answer, their verified the 148(z). doing business Company as denied “(e) right-of- failing yield that Grindstaff was agent or em- way required ployee law. the time of accident,
j contributory negligence Hamp- negligence things, that among other alleged, and/or himself, changing, or re- caused proximately injuries were ton’s bicycle versing, the direction of his similar particulars negligence, his own path propelling it into the of Grindstaff’s answer. alleged in Grindstaff’s those onrushing automobile at a time when it was ap- trial, June, after it At the collision between the automobile too late for imme- plaintiff’s evidence peared from bicyclе and the to be Grindstaff. avoided collision, diately Grindstaff’s previous to the They call our attention to the hereinbefore traffic traveling west in the north auto was court, mentioned fact that the trial after he first Highway, and that when lane of hearing plaintiff’s evidence, sustained their bicycle, in an Hampton riding his saw Joe respect demurrer it in two of his alle- *4 of easterly down the south side direction “(f)”, gations negligence, “(e)” of viz: and yards Highway, than SO to 70 more distance, and, by supra; referring to the away, speed his auto he braked the car, that down the road and ahead of his hour, per to 40 or miles about 50 or Hamp- Grindstaff testified he first saw the collision, bicycle just but before that, boy, they effect, argue, ton on the changed turning toward its direction evidence, not a case basis highway the north to cross the front proper keep a a where motorist has failed to car, de- oncoming the court sustained lookout, bicyclist has but one in which a plaintiff’s evidence fendants’ demurrers to They say: boy failed to do “The could so. plaintiff’s allegation that as to Grindstaff have the defendant’s car as soon seen yield right-of-way and was failed to to-wit, boy, at the defendant could see the per 65 miles hour at driving in excess of away.” question, how- least 210 feet accident, the time of the but overruled ever, purpose error determining for the respects. ruling these demurrers in all other on defendants’ the trial court’s verdict was not: motions for a directed had introduced their After defendants boy coming car Coiild the have seen the evidence, they pleadings be asked that thеir looking in that (if him he had been toward tend- amended to conform to the evidence car, and, boy direction), but: Did the see unavoid- ing to show that the accident was not, legally attributed if can such failure able, separate motions for directed and part of negligence on the Grindstaff? Upon verdicts were submission overruled. boy, no evidence There is instructions, jury under the case to the coming auto saw Grindstaff’s covered, others, subjects which among bicycle pedaled his until he had toward him contributory of unavoidable accident and highway paved line of the across the center negligence, general a verdict was returned car, just an instant oncoming in front of the plaintiff’s damages favor for occurred, then when he the collision before $118,666.00. amount of After the ovеr- bicycle the road’s back towards turned his separate for ruling of defendants’ motions * * * lane, testified) (as but he south remittitur, trial, they per- and for a new think it was for didn’t make it.” We present appeal. fected the it was Grind- determine whether duty, all of the circumstances staff’s under re arguments Defendants’ first Hampton boy riding seeing and after judgment are versal of the trial court’s high- bicycle side of the along the south attempting at demonstrate error directed so), to way plenty to have done (in of time overruling of their motions for a his auto’s horn have sounded They very positively, directed verdict. and/or control brought the auto under such quite have persuasively, urge that the evidence occurred, have collision would not that the guilty negli shows of no either, duty (in his failure gence, Hamp and whether duty, оr breach of toward Joe upon he stood all, respects ton, but, contrary, on the shows that proxi- evidence) charged the close of the by the proximately collision was caused ,198 Tit. O.S. have
mately boy the collision. could done to caused warn the of his part: provides approach 148(z) collision, Supp., section avoid the at least 19S7 away he when point was farther from the vehicle, operated “Every motor when impact and before the accident became equipped with upon highway, shall be imminent. that, argues Defense counsel order, good working a horn in boy bicyclist if position in a emitting un- capable sound audible safety on the highway south side distance conditions der normal him, when Grindstaff first saw the latter (200) than two hundred not less right had a to assume would continue to * * a motor *. The driver of feet ride in a safe as the location auto came necessary shall, reasonably when vehicle They quotations nearer. cite from Ameri operation, give audible insure safe Jurisprudence can concerning reciprocal * * * warning with his horn duties motorists (Tit. owe other each 47 O. 125.14, Supp., pro- Tit. section 47 O.S.1957 S.1951, section 121.4(a) and (d), and Sec vides : 121.5(d) tion (1) regulations ) par. contained in (a), (2) (e) subds. pro- (b), “Notwithstanding foregoing par. (2) 121.10, article, section every driver or Title 47 visions of this O.S.1951, applicable bicycles exercise operator operated of a vehicle shall *5 any colliding to with highways. They say due care avoid the evidence shows upon pedestrian any roadway and shall obeyed Grindstaff all appli of these rulеs give warning the horn sounding him, cable to but that violated necessary prop- when and shall exercise applicable bicyclists. those to We do not precaution upon any child observing er necessary it go deem into these matters any person incapacitated or or confused properly which were all submitted the roadway.” upon a appropriate instructions, under includ 13, ing 7, 12, 14, those numbered 15 and 18. initial The statement in defendants’ alleges any Plaintiff in no error on brief that “the record is silent whether except instructions one hereinafter con is the defendant sounded not his horn” recognize While general sidered. we the correct. it true While that Grindstaff rule, exceptions we ignore cannot the there interrogated subject, was not on this either to, following excerpt the from 8 Am.Jur. direct, cross, examination, or in re 2d, Highway Traffic”, “Automobiles and plaintiff’s witnesses, buttal least three 549, quoted section in defendants’ brief: gave testimony of the latter the effect rule, that did not his automo “As a sound it is not motorist’s horn, bile’s that duty stop there is no claim when he sees children on testimony bicycles these not of witnesses did meet on highway unless at the Missouri, requirements apparent they it set forth in time that are in a Ry. Flowers, peril. Texas 187 position Kansas & Co. v. precau- Additional 158, 816, required Okl. 101 P.2d and referred to in tions he where under Missouri, Ry. Kansas & v. Baird may Texas Co. circumstances he reason- 847, 849, (Okl.) apprehended P.2d ably 372 850. See also motorist if Meyer (Okl.) McBroom P.2d approaches 303 303. warning without a child on Thus, conceded, bicycle, if it be counsel defense a may, through latter fright infers, that, shows, as far as the bewilderment, place evidence in a himself Grindstaff, Hampton boy position However, after he saw the peril. pre- try going bicycle sumption to ride his across negligence merely is raised road, everything possibly did he injury boy could because of an riding ato collision, bicycle have done avoid we can a which was caused a motor- say certainty with coming that all reasonable ist into collision with him. ” * ** agree men everything he (Emphasis added). did Case, tinguishes ignore the conditions and this case from the Alder can we Nor Co., Okl., qualifications general in Graham v. Dawson Produce rules stated excerpt quote 185, following from P. and others like Richardson v. Park er, Pound, (Okl.), previously 205 Okl. Griffeth v. 357 P.2d P.2d Okl., Halbig, discussed in 968: Cox v. 382 P.2d As said O. C. Cab Service Co. v. “ * ** operator auto- Askew, 183 Okl. 79 P.2d 812: ‘may reasonably rely mobile on the “Many cases are cited where drivers assumption persons that all will exer- cars, using traveling due care or safety until he cise due care for their ordinary prudence, have been knows, know, otherzvise, and, or should exonerated where accidents have oc- operating when his automobile in a pedestrians curred because children or manner, occupy- seeing lawful another suddenly path have darted into the place safety ing a and conscious of oncoming vehicles. basis vehicle, approach may assume generally those is that action cases deliberately that the other will not leave pedestrian of the child or was so sud- safety. fact, place it is the nothing could den that that the driver general rule that he is not bound to prevented have done would have anticipate negli- one will act ” accident.” gently violation of the- law.’ not, (Emphasis added.) 125.14, supra, While Section does terms, specific apply bicyclist, as dis recognize presence Defendants that "the pedestrian, tinguished it does fur roadway a minor imposes duty on the fact, generally recog nish a clue the motorist to exercise additional care law, nized in tort that children are not ” * * * * * * duty varies *6 As category the same as normal adults. circumstances”, with the including the age, children of tender we said in Law to “ * * * age, minor’s location, his what Okl., 320, Eicher, 271 P.2d 323: rence v. doing, apparent he is intention to con , age by de- “A tender nature child of ” * * * present tinue his action etc. But imposes upon a mands the law they do not relate these truths to a situation duty the exercise in behalf motorist to one, present like the a where motorist sees a degree of such child that of extreme 10-year-old bicyclist him, coming toward exercises which such motorist caution perhaps, if he carefully enough, looked degree self-preservation, or that might reasonably apprehend the danger the of care commensurate with bicyclist is not approach aware of children, arising disposition from the of might conceivably bicycle turn his into the 751, Porte, Darr v. 220 263 N.W. Iowa path car, of oncoming alerted, the if not 240.” warned, by the sounding of the car’s said, case, the court cited Iowa the O’Connor, Ore., horn. Alder v. 351 P.2d among things: other by defendants, point, cited is not in be “ * * * degree cause there the The care which suddenly child of involved ran out required from the to exercise path behind one into defendant was auto the of auto, and, presumably defendant’s in this situation was commensurate because split-second danger, with the the between the child’s obvious one of last appearance street, disposition dangers running and his obvious was the of auto, into the years, seeking no failure to honk the auto’s children of tender to Here, get suddenly horn highway, was involved. the run presence the across to of Joe the highway response impulse right-of-way across and with- seen, to, was and known judgment in an out the exercise or cau- of Grindstaff abundance time to have sounded a zvarn- tion. Motorists must account take into of ing. principal This is disposition the fact this children tender of of dis
3'ears, precaution pass- and take the exercise such reasonable care and cau- requires. injury the ing them which that situation tion would not have occur- red, you shall find for the defendants.” >> 5¡í i¡< n Luc v. the discussion Webster positive Sec also Defendants’ assertion: quoted kow, N.W. 219 Iowa the act of “There is no evidence that 5, 37-38. 30 ALR2d in the annotation at (Grindstaff) proximate defendant consider prerogative injury” only of rec fails to cause of Hamp propensities by child of may natural of a person negligent be ognize that a whether, act, boy’s age, act, determine and to but ton failure well overt as as circumstances, sufficiency under all evidence ignores of also honking jury, right join, the is a to assume —without for submission to had boy remain sues whether failure his car horn —that Grindstaff’s highway horn, take other riding the south side of sound his auto and/or Hampton’s safety attempt precautions com safety, than position rather a duty bicyclist invoked, mensurate with fully a it, recognized, and cross was position age, reference to the instructions concededly correct Joe’s road, by the evi and the other facts shown reads: such No. which trial court dence, was, were, proximate cause respects that as are instructed “You quota of the collision. While defendants’ degree contributory negligence, Watson, tion Hunter Construction Co. judged required a child must care l., proper 274 P.2d sets forth Ok maturity, ca- according the child’s cause”, “proximate definition of that case alertness, experi- pacity, intelligence, that, case, fails to demonstrate in this ence, prеvious training, all in and his trial court committed error in not deter encountered, light danger mining (by directing a verdict for defend experience, knowledge and and that his that, ants) law, as matter failure on appreciation danger incident to rid- part of Grindstaff in or more of the one bicycle ing Highway shall on U. S. to, respects just merely alluded furnished a by you determining be considered injury “condition” which made Joe’s approxi- whether possible subsequent independent and that a months, age years mate and four boy injury. act caused his own Nor ordinary prudent person acted as an *7 does an examination the of evidence dem age capacity of act- and would have onstrate such error. circumstances, if ed under similar and you Hampton possessed only find that the error of claimed Joe degree experience, knowledge such a of court in the instructions which extensive appreciation issues, others, and the rules the of of were submitted to such and applicable, dangers determination, road then jury and the the is its failure to riding bicycle give Requested incident the defendants’ Instruction No. did, manner which he and that he failed the 7. That instruction would have told substance, jury, exercise such reasonable care and the had that ordinarily prudent presented Hamp caution which an prove evidence to that Joe person age capacity negligent of and should ton was in the enumerated re spects answer, and, alleged have exercised under such conditions in their in addi circumstances, tion, Hampton guilty and that his failure that if was found оf degree negligence any to exercise such of care of one or more those proximate respects, caution was the cause of and same was found to have caus injury, or that his exer- ed resulting injury, failure to the collision and a ver approxi- defendants, cise such care dict and caution should be returned for even mately contributed his in- if the to or caused defendant Grindstaff was also found jury, if negligent. and that failed to to have been had not In its Instruction
201
from the
prejudice
defendants’ claim of
jury
the
the defend-
No. 18
told
court
(with-
18
Instruction No.
giving of
court’s
guilty of
had
was
alleged
ants
Requested In-
giving defendants’
respects
out also
same
contributory negligence in the
product
appears
7)
to be
No.
Requested
struction
In-
in defendants’
enumerated
substance,
tо lack
pure speculation and
did,
substantially
of
7,
struction
No.
no
merit,
alleged
constitutes
error
Requested
wording
same
set forth in said
see
In this connection
cause for reversal.
Instruction,
prerequisites
of
describe
288
Pankey
(Okl.),
Public Service Co.
defendants,
except that
a verdict
for the
373,
P.2d
prerequisite
Hampton’s guilt
finding of Joe
“contributory negli-
as
was referred to
uphold
we
ar
defendants’
Nor can
gence”
“negligence”.
rather than
Defend-
that,
guments
the effect
on
basis
is,
substance,
argument
that
ants’
evidence,
question
undisputed
there is
Hampton’s intelligence,
evidence of Joe
guilty
contrib
Plampton
but that
was
alertness,
experience, previous
training,
utory
er
and therefore
was
negligence,
etc.,
danger
encountered
as related to
jury,
to submit to
ror
the court
riding
bicycle,
day
colli-
was,
question
whether he
not.
sion, was
than sufficient for him to
more
question
contributory
Assuming that
guilty
primary negligence. They fur-
be
negligence
was raised
defendants’ mo
say
give
ther
court’s failure to
that the
(as distinguish
tions for a directed verdict
primary negligence
instruction on
demurrers,
ed
see Otis Elevator
from their
* * *
prejudicial
them
because
p.
Melott,
413)
supra,
Co. v.
281 P.2d at
we
implied
jury
to the
that the court had held
present argu
think
of their
the weaknesses
as a
un-
matter
lawof
principles
are
ments
demonstrated
evidence,
guilty
pri-
der the
could
be
applied
discussed in such cases Mis
mary
recognize
negligence.” While we
Perino,
souri,
Ry.
Kansas & Texas
Co. v.
primary
part
negligence
without
907,
Fordyce,
89 Okl.
214 P.
Lawson v.
defendant,
contributory
can
there
be no
American
Iowa
N.W.2d
negligence
part
plaintiff
on the
Glycerin
(C.C.A.,
Cir.)
Hill
Co. v.
8th
(Cities
Harvey, C.C.A.,
Service Oil Co. v.
Okl.Dig.
F.
others cited in 11
<$=*136
Cir.,
Negligence
(9), (25);
10th
and we there
783),
148 F.2d
and assuming,
unnecessary
fore deem it
that,
to detail how those
deciding,
without
on the basis of the
principles apply to each one of defendants’
evidence,
have found Joe
arguments.
special note,
have
We
taken
Hampton guilty
negligence,
(with-
however,
argument
any
effect
out
negligence
part
on the
of the de-
that our
requirement,
fendants)
State’s constitutional
was the sole cause of the colli-
sion,
questions
body
contributory
we do
negligence
not think this
was deter-
red,
discouraged,
way
by juries,
or influenced in
applicable
resolved
is not
*8
against
finding, by any implication
such
this
assumption,
case. The
undisputed
as an
fact,
by
wording
that
created
thе
of Instruction No.
failed
look
in the
18, especially
this
is
direction from which
when
instruction
con-
the Grindstaff car
approached him,
quoted
attempting
sidered with the above
instruction
before
to cross
highway
it,
the
ahead of
No. 19 and the court’s other instructions.
would not demon
connection,
question
notice
Hampton’s
St.
strate there was no
of
Louis-San
Ry.
v. King (Okl.),
contributory negligence
by
Francisco
Co.
368 P.2d
resolved
835,
(Old.),
v. Melott
Otis Elevator Co.
281 the triers
of fact. Whether
conduct
Terbush,
408, 415,
prudent
v.
P.2d
and Williams
208 was
less
than that
be ex
As, in
pected
reasonably
P.2d
prudent boy
Okl.
our
of a
of
experience,
opinion,
age,
etc.,
a whole
training,
the instructions as
and whether
fairly
together,
proximately
by
when considered
submitted
the
collision
caused
proper
jury,
negligence
part,
of the casе to the
negligence
issues
or
on
Grindstaff,
part
negligence on
“E.
of
Verdict
Been Di-
Should Have
Defendant, Kelley
rected for
& Com-
both,
questions
part
were still
for
pany.”
jury,
men
about which reasonable
carefully
After
examining all of the evi-
and held
well have differed. What we said
bearing upon
Kelley
dence
the issue
&
Okl.,
Myers,
in Garner v.
318 P.2d
Company’s liability
neg-
for Grindstaff’s
Barker,
Distributing
Motor
Missouri
Co.
collision,
ligence
applying
it,
in the
(3rd syll.)
170 Okl.
204 681,. by following pronouncement de
(C.C.A., Cir.) cost) 152 F. cited (p. 8th wording paraphrase 231) fendants. : To in that case: The evidence court “The test is brief this: If the this case is conclusive that Grind- not so employee work creates the neces- n / Kelley agent staff Com was not the & travel, he sity is in the for course pany, subject its and to command in the employment, though his serving he is trip Arizona, of making
matter
tо
at the
purpose
same time some
of his
* *
*
car,
traveling
in his own
there
own.”
duty
that
to
is was the
court below
case,
We
present one,
think that
like the
to
issue
withdraw that
distinguishable
is
from the case of Natell
684).
(152
p.
so
matter
law.”
F.
hold as a
Taylor-Fichter
v.
Co.,
App.
Steel Const.
257
agree
We
the court Heintz v. Iowa
Div.
15 N.Y.Supp.2d
(affirmed
Co.,
Packing
222 Iowa
268 N.W.
ap
N.Y.
966),
N.E.2d
which
616 that:
pears
precedent
opposite
be
to
for the
“ * * * the better
rule is that
Here,
Cooner,
view.
as in
the claimed
employer
where the
has control over
specified
agent
employee
paid a
,
employee,
employee
fact that the
compensation
trip
making
for
particular
uses his own
wholly
automobile is
im-
while,
employer;
in the interest of
material
if
being
that automobile is
Natell, supra,
regularly
Fichter
received
when
employee
used
is in the course
month,
salary,
each
in addition to
”
* *
'
*
employment.
any
expenses
sum
“for
$500.00
thing
might
up”, including
that
come
trans
And,
recognized that
fact
this court has
; and,
court,
portation
pointed
as
out
exercised,
that
not
if
such control is
paid
him,
itemization,
this was
to
without
it,
employee
subject
can be exer
or it
irrespective
any job
assignment.
cised,
is no obstacle to
existence of
Some of the seven factors which
ma
Shep
employer-employee relationship. See
jority opinion
Cooner case describes
Okl.,
pard Hall,
It
city. closely insofar as the is more analogous record possible any sought it to obtain criteria those cases in which recovery was not is pain earnings of the future and suffering, as to for future accident, only who, except time of which there is at the no rule the old, years enlightened was still impartial 10 and a few months conscience ” ** * opportunity school, jury. (Emphasis grade added.) in and had had no concerning his any reliable clue to furnish In this connection see also Hanson v. pro potential wage-earner as a or income Steamship Co., (U.S.D.C., D.Del.) Reiss apply for not ducer. of the reasons Some 545, F.Supp. 184 and the authorities cited value, worth, principle present ing the or 12, Reporter, page footnote 553 of the present like the one are well case 348, including Anselma, Wyo. Borzea v. 71 McPhersоn, expressed in Collins v. Ga. 91 796, brief, 258 P.2d 804. In their answer 552, 555, 347, App. S.E.2d as follows: 85 recognize damages for al- not, leged cannot be “Since there is earnings loss of the future of a child “ ** * very capable nature of this other like are not cases, any precise from which a proof like evidence be offered jury mathematically by qualified could determine already an adult who has * * * profession ”, of the life of the deceased they value or skill but “ * * * past say infant on the of either basis some evidence of a more capa- earnings earning precise future future than nature is contained the rec- ”* * * city, question necessary prevent and for this reason the ord here determining to be arbitrary jury the amount grossly awards in excessive entirely awarded is almost within the amounts. jury discretion оf seems to this —it “4”, will be items “3” and It noted from question reducing court that supra, $49,500 damages that a total of present value of life to cash value plaintiff prayed “suffering for is for any other method is not 7% damag anguish”, type mental which is where, It is true that involved. always recog es for which this court has action, personal-injury a death or meas nized there is no absolute standard of injury may be measured some extent Bennett, Okl., (see urement v. 376 Walton earnings loss of future and loss of Okl., 240, 242, Shebester, Ford, P.2d Inc. v. capacity, earning amount recovered 200, 361 P.2d v. Har Denco Bus Lines present is the value of a future in- gis, 563); 204 229 P.2d Okl. terest, and the whole future interest plaintiff’s alleged we think “2” item be must first determined and then re- does, “inability pertaining, to his to> * * * present duced to cash value. (Missouri-Kansas-Pacif live a normal life” authoritiеs.) (Citing Handley, Tex.Civ.App., ic Rr. Co. v. 341 applied generally 205) “intangible
“This rule is also S.W.2d concerns other assessment, damages, other State and Federal courts. elements” of whose Annotations, 1439; weight authority against See 154 reducing, 77 A.L.R. however, cases, application worth, present A.L.R. 796. These deal or val ue, principle. Funkhouser, adults and with not children too Porter See v. 216, 218, chosen to have vocation Nev. 382 P.2d 219. At least young life, and therefore fall into do not one court has said that even in cases where where, by proper category of those children it is jury to instruct on that * * * proof necessity, principle fixing direct of the financial of interest dispensed upon money loss is with. The discretion rates and returns is not a damages— left in matter giv to award on which instruction should be is, expеctancy to determine the extent of the en” and “tables of and illustra survived, injury, plaintiff if the minor tive tables of the money” value of earning jury, but do aids to may proper as SMITH, Error, Eldon Plaintiff in Patras v. See impair its discretion. 20, 101 N.W.2d Waldbaum, Neb. Oklahoma, STATE of Defend ant in Error. *13 reasons, dowe foregoing For the No. A-13620. contention defendants’ agree Appeals Court of Criminal of Oklahoma. “unreason appealed from is judgment Oct. oppressive” able, and unconscionable support the lack of evidence account of of its $99,840.00 value” of the “reasonable trial court
total; and hold we overruling defend in error
committed no remit plaintiff require motion to
ants’ previously entered part judgment
.a For the jury’s verdict.
in accord with reasons, said ver decline hold we
same the basis excessive on judgment
dict and value, worth, principle, present a condition a remittitur as
or to order expres judgment.
affirming Previous said Court, herein as the one such
sions of this Rail
quoted from Missouri-Kansas-Texas hereby Edwards, supra, are
road Co. extent overruled to the
modified and/or syllabus paragraph herein.
shown defendants have demonstrated
As same, reversing judgment
cause for hereby affirmed.
the trial court is DAVISON,
JACKSON, J.,C. V. LAVENDER, IRWIN, JJ., BERRY and
n concur. PIALLEY, J., part C. concurs
n dissents part.
HALLEY, (concurring Chief Justice
part dissenting part). defendant, Grindstaff, my opinion automobile,
(cid:127)the driver owner of the scope employment
was not within the of his Kelley Company at the G. time
with O. judgment
-of I the accident. think n shouldbe affirmed as to G.
reversed Trustees of Oliver Kelley Trust, Revocable O. G. d/b/a Company.
.& For I dissent in that reason
(cid:127)part majority part concur to the
'Opinion.