*1 inсident to damages plaintiffs $500 de- debris washed up cleaning How- land. onto fendants’ land plaintiff testi- ever, shows the record up for “Well, I wouldn’t clean fied have.” This testi- go through what I to question as answer to inwas dollars damages sustained the amount competent evidence and
and cents. It uncоntradicted, was sufficient computing basis
serve as regard. damages amount applies: therefore following rule disputed law,
“Where, in actions
questions fact submitted to are jury’s judgment
j'ury, will be disturbed thereon not
based any evidence rea appeal there is support it.” Eden tending
sonably Vloedman,
930, 932. af- trial court is part awarding $500 firmed as to debris, removing
damages incident to (cid:127) awarding рart reversed the land. DAVISON,
CORN, O’NEAL
BLACKBIRD, JJ., concur. part;
HALLEY, J., dis- concurs C. part.
sents in
JOHNSON, J., V. and WELCH C. JJ., dissent.
ARNOLD, et al. et al. GILLEY
FRUECHTING
No. 35124.
Supreme Court Oklahoma.
July 14, 1953. *2 Duyall Clinton, Cook,
Darrah & Dudley, Dudley, Duvall, & City, Duke Oklahoma for in error. Monroe, Meacham,
Ira Meacham, Meacham, Meacham Qinton, & for defend- ants in error.
HALLEY, Chief Justice. Gilley
Wanda and McLean filed separate personal action's for against George Fniechting Theo' Fast Jr., individually partners doing and as busi- Friiechting ness as & Fast Butane Com- pany, in the District Custer Court of County. grew same cases accident an'd consolidated- trial be- were for jury. Separate fore a ren- verdicts were plaintiff, dered for each and the defendants appealed. par- have shall We refer the they appeared ties trial court. 19, 1950, alleged Plaintiffs that on guests an automobile was driven into retail gas station butane pur- of defendants in Weatherford for tank, pose filling car gas; negligently that the defendants permitted vapor escape air, into the then started the motor nearby, of one trucks defendant’s spark escaped ignited which a escaped which had air and into the sitting, car in which causing explosiоn within and fire car it, resulting around being injured first, severely second and third- degree burns. alleged
It highly butane is a explosive dangerous gas, and that de- negligent in fendants were failing have equipment proper handling for init failed to return hose to storage tank while the car tank was wholly filled failed to warn dangerous gas. tiffs of nature of butane Gilley prayed $10,000 Wanda Plaintiff for $20,000 per- for injuries. Betty manent McLean made prayed allegations similar per- manent The defendants answered by general denial. explosion afterward and that occurred. verdicts for réturned pump being That "to Wanda had no hоse "plaintiffs. awarded to used It expenses, return the car from- tank to *3 tank; require storage regulations of suffering, and fire instance, To a return In this the accnie. hosev power accrued to filling which had accumulated in the Betty gave it McLean suffering, tank was arid turned into the air around the еxpenses, . shortly power'.accrued Plaintiffs tank. testified that before loss,of explosion they gas sitting the smelled verdict for Wan- total and to accrue. The .while .car, $4,846.35, and for the tank of which Gilley, to the was amounted
da explosion occurred, $5,702.75; filled. When the one sum of the ordered, stiрulation of them ran from car the other was upon the further it was car'by of each carried from The the Gene Moore. parties, judgment in favor Chapman single truck plaintiff of Mr. was stationed appealed from .a .con- .he plaintiffs feet car. were appeal. The solidated severely burned arid were taken to Clinton contend the court should Defendants hospital, were treated burns demurrer to sustained .their have days later. about released directed verdict for evidence and in- because defendants was. undisputed testimony showed that causal connеction sufficient to be- girls severely both of the were burned on alleged negligent tween acts of defend- face, legs. arms and no was by plaintiffs. suffered ants and the claim "that did not defendants know explosive volatile and of butane gas. nature by negligence produced The evidence аny warning There is no evidence that principally plaintiffs- consists testi- of. . signs tanks, storage were around the morning that on the showing any warning there is no oral claim 1950, 19, riding, plaintiffs by given kind was defendants’ an Austin Schroff and automobile driven employée, Chapinan, present Mr. was who accompanied by cаr had Gene Moore. The at the time. Defendants advanced no the- adjusted gas a.s for the use been ory explosion, as what caused the They Wichita, had driven from a fuel. Schroff, negligence than the of Austin Kansas, previous night and needed fuel. independent, intervening cause car testified that driver of the defend- proximate could been the cause of the have only retail es- ants’ station was the explosion. any' other If than that cause area, in that and that he had tablishment alleged by plaintiffs proxi- was in fact the filled, previously the car at that had station. causе, supported mate was .it not-claimed or operated a and re- wholesale Defendants ' by any evidence defendants. highway on a short tail butane station Weatherford, Oklahoma. distance of" Defendants claim that the evidence shows companions ap- and his Schroff, When Sсhroff negligence of Austin proached morning men- the station car in driver of the which open tioned, gate found the and drove proximate riding, was cause of Chapman, in, one there. Mr. found no testified : tiffs’ Schroff as .follows defendants, drove into the employee of experience “Q. you How much thereafter, shortly having left to station ? in the butane business A. I adjust motor of tools his obtain some 1941, hauling first started butane in truck, standing in the station. 1941, 4, July hauled butane for and I permission that he asked testified Schroff Noels Kansas .Mr. until.June Chapman that Mr. said fill his tank army. when I went in the He then brought and fill.” “Go ahead expеrience car, “Q. enough You had opened a hose to the the valve end of very dangerous it to-know it is tank, storage “kicked -It dangerous ? A. is not Chap- substance further testified Mr. on.” He properly it is if handled. would tell shortly his truck the motor of man started were fbree'd or coerced that deféndаnts handle haul would rather you this —I butane. s car with filling the tank Schroff gasoline. 'than propane Schroff, it is á knowing “Q. Mr. Operating A & Co. A Cab let why you did substance dangerous Drake, you fill that tank ahead and go them in the fourth said ? hose properly vented it wasn’t a knew -cause is re- intervening “Where an overruled.) “(Objection lied-upon' defense in-ari action as-i a dan- you knew it was “Q. Since personal injury negligence, due to why handle, did gerous substance alleged issue whether *4 you if your fiil car you permit them to the-negligent act or omis- .than other properly hose wasn’t' that the thought proximately sion causеd -of defendant fa- was other A. There no vented? question injury-is of fact-for the. pull in the town. You can’t cilities jury’s determination.” . you like place go to another of one Co., In Okl. Nelson Wasteka Oil I needed gasoline station. can a 439, 165 it was said in second fuel.” Moore, tes- companion, Sсhroff’s Gene tified follows: reasonably tends to “Where evidence original primary negli- or you your, Do know own “Q. of gence, ques- such evidence raises knowledge explo- what (the started it proxim.ate injury, cause of tion of sion) A. All I ? know it could any original negligence whether or in- spark been a that set the truck independent cause, tervening arid gas off. may reasonable men draw different “Q. How far was that truck from therefrom, case is conclusions one say I
this automobile? A. would jury.”. for neighborhood 2-5, of 30 feet. or know the don’t exact distance.” plaintiffs’ testimony Much of was contra- testimony dicted the defendants. Defendants state in their that brief plant Defendants testified that their was testimony of is Schroff and too unbelievable hose, equipped vapor return and de- improbable consideration, to warrant with when vent, employee Chapman fendants’ testified that he testified that it improper, was truck just the motor of his was n-o-tstarted vapor of butane into the air. We cánnot explosion. prior to the -One witness testi- agree this with contention. Chapman fied that had stated one Mr. that Schroff, the driver of the car in which lighted a just had match plaintiffs sat while its tank was filled prior Chapman explosion, to the did not gas, Moore, companion, his testify so at the trial. There com- testified that agent, Chap- defendants’ Mr. petent to establish a causal evidence connec- man, them told vent the butane alleged negligence tion of de- between air, Chаpman, and that knowing explosion fendants and the from which there hose, was no return plaintiffs’ injuries resulted. jury The had on”, “kicked the meaning that he turned n testimony plain- right to believe gas. evidently believed and- disregard tiffs’ witnesses that of testimony, this right as it had a to do. witnesses. defendants’ Defendants claim that the nеgligence of proximate Schroff was the plain- plaintiffs praye'd petitions in their cause‘of injuries. tiffs’ He testified damages- he and for filled the at permanent injuries- tank this station before accrued and to once accrue. and that there was no prayed such station Neither he They could secure power or 1-o-ssof earning earnings; vi- cinity. We cannot agree allege acts of had “life-long” did proximate Schroff were the ugly -a result of their .scars as explosion. There is no evidence such to indicate Neither testified to facts. and to injury special damages, sonal instructed Instruction especially must be be recoverable for each might find jury that * ** petition. claimed hospital expense, tiff impairment “for suffering, and ‘permanent injury’ allegation “An any, and rea- accrued, if allegation of equivalent is not future, to accrue sonably capacity. certain Scholl v. diminished directly nowhere any.” The instructions Mo.App. S.W. Grayson, 147 recovery permanent'in- any mentioned 415.” juries. allega- there is no In the case before us had “life- plead that each accrued or While tion of loss of in- their as the result ugly long scars” the future. certain to accrue in testimony such scars impair- no juries, there is recovery damages for prayer for expert medical permanent cannot assume earning power. We ment in the record. testimony is by plaintiffs found the scars suffered testimony 1950, “lifelong” in the absence occurred The accident to that effect. approximately six tried and the case *5 plaintiff was Neither thereafter. months may injuries plaintiffs may or not permanent. scars were her asked whether may They may not permanent. been power of earning she had that have reduced the Betty testified McLean part such nature injuries of No- were not of latter tiffs. The two weeks worked first of the 1950, severity relieve vember, this was and as to and perma- proof their she able making burden of time after accident at time nency. as remained that she earned Such scars stated $1.15
work. She Pаcking trial, Cudahy more than six months of the per working for hour accident, to the is exhibited hours worked of the date of the mention Co. No testimony were of say to what jury, but we cannot shown. within the bring case any time. Neither as to this Gilley such nature earned at Wanda trial, testimony required is expert not rule thаt the time of working objective injury. to' Such cases work was unable testified she neither arm, eye, of an no testi- the loss generally There is involve why idle. she was paralysis member leg, of some unable foot or or the showing clearly dis- inability body, to earn which constitutes a long or for how such work permanent injury. cernible would continue. judgment Lamar, conclude that 145 We Okl. In Rhodes v. subject following: to the 335, 336, be affirmed 223, it in the should 292 P. was said Gilley remit within That should 1. Wanda ninth opinion days this be- thirty from the date described a “Where the $2,167 final in sum of which is comes nature and of such petition are of such her for part of the awarded import necessarily a severity as loss impairment and loss or time, averment thereof in the direct not made this the remittitur be should may dispensed be with.” pleadings for a new trial as to is reversed her. Horn, 100, Kennedy 186 Van 77 Okl. Betty shall within remit 2. That 483, body opin- in the P. it was said opinion days from the this be- thirty date iоn: $3,000 final in the sum of awarded comes appears to be well settled “The rule and should her pleaded, special damages must be be made this cause is not the remittitur proof to admit of such and is error trial as to her. reversed for new allega- of such damages the absence * * * tions. J., CORN, JOHNSON, C. and V. WILLIAMS, DAVISON, BLACK- equally “It well settled that di- is BIRD, JJ., concur. per- capacity from minished
535 ARNOLD, Co., Downer 53 J., dissents. Southern Union Gas Baum, 354, 815; N.Mex. Davis v. ARNOLD, (dissenting). 889; Mc Rawle v. 133 Justice Ilhenny, 735, 177 Va. S.E. A.L.R. Appellate practical as courts should be 20-24; Trial, Am.Jur., New Sec. its right. (cid:127)well as is on This court behind n docket. Error, Am.Jur., Appeal Secs. Time should be consеrved specificauthority 1227. These cases are possible detrimentally affecting without partial' partial affirmance and justice reversal duty absolute to administer with directions. promptly. Only one of the elements of is dispute beyond There are two thing's not sustained Under a evidence. plaintiff these cases: The evidence of the partial affirmance and and direc- reversal in each sustain amply case is sufficient to portion tion to take evidence on the reversed the verdict of the on the elements of judgments, earnings, to wit: loss of damages alleged, to wit: medical bills these cases can be retried in two hours time pain (the separate verdict each. Gilley returned for ele- Wanda on these expenses ments was for medical majority opinion It is no wonder that .$679.35 sep- suffering, authority cites supporting the affirmance arate verdiсt for McLean was upon of the judgments here condition of expenses portion judgments remittitur of that n suffering) ; wholly insuffi- earnings directing cient to sustain the returned complete grant below to new trial for Wanda *6 remittitur is hot made. There is no such separate authority. However, and the verdict for that this admit precedent loss of can establish such if it wants to. power. judgments these rendered on precedent and The establishment of such separable verdicts are likewise applicability my its in judg- this case is to the amounts awarded each element of impractical. very ment damages. majority opinion is correct holding judgments the verdicts and the item of loss are by not sustained the evidence and that there regard. error
While there is some evidence on ele- damages,
ment of earnings, to wit: loss of only obj is not sufficient. The ection to the WESTERN AUTO PARTS v. STORE AUTO recovery instruction on is that EQUIPMENT & CO. the evidence is not sufficient to sustain the No. 36006. recovеry. However, entire jury separates of damages elements Supreme Court of Oklahoma. as hereinbefore shown and the court’s July 14, 1953. separated judgment likewise them. order justice promptly practically to do
separate parts in each case ($679.35
that is sustained
medical bills and
in the case and medical bills $2,000 pain the Mc- case) should
Lean be affirmed and the cause reversed for new
otherwise trial. Holbrook Moore, 865; 177Okl. 58 P.2d Cramer Bock, 525; Wash.2d