*1 122 City, Rinehart, Butler & Oklahoma CLAUSE. CO. v. A. BROWN
JOHN for defendant in error. June 1951. No. 34005. parties oc- JOHNSON, J. The herein July 17, Rehearing 1951. Denied cupied positions in the relative reverse Rehearing for Petition they court, and Second will be hereafter Sept. 1951. Denied they appeared. referred P. 2d petition alleging filed her that on or the 27th 28th lawfully December, purpose for defendant’s store conferring de- with defendant’s credit partment respect obtaining credit certain merchandise which she purchased had from and returned defendant; that she was advised to dis- agents, cuss the matter with defendant’s approached desk agent depart- defendant’s in said credit ment, agent, defendant’s a Mrs. Mor- gan, directed her to have seat adjoining desk; her seating she was in the act of herself chair, Morgan negligently in said Mrs. carelessly pulled the chair causing beneath to fall floor; backward that as a plaintiff’s hip sprained sult an condition arthritic at the time an arrested or inactive aggra- condition was reactivated vated; reason of great pain which she suffered long time, endured necessary hospitalized for her to surgical and medical treat- and secure leg ment; the use of her lost was unable walk without crutches, health is so aid impaired work. she is unable alleged she was 49 She good age at the time of capacity earning health per year, prayed judgment $1,000 suffering, expenses incurred in connec- medical injury, hospitalization tion with her earning capacity, the total loss $33,991.95. sum petition, For answer de- any negligence fendant denied contributory negligence, pleaded part, pleaded the conditions Looney, Ross, Looney Smith, and further Watts, open" time and City, Oklahoma in error. *2 “No. 6 disability, plaintiffs obvious; the old condition an any, caused was if plaintiff “You are instructed that the arthritis, reason of ordinary all normal or assumes the liability the of was no there upon risks attendant the use of the defendant. premises particular where this accident occurred and that pant the owner or occu- joined, trial was Upon the issues thus duty premises of said is under no jury a ver- to a which rendered premises to or the so reconstruct alter plaintiff sum of to known or obvious dan- dict in favor the as gers, obviate injury liable for nor the owner $19,812.12. motion for a of Defendant’s position person the to the overruled, new trial and defend- plaintiff resulting injuries from appeals. ant they are to her as so obvious to the defendant have observed and which she should proposition Defendant under its first the if been in she had failing asserts the court erred in of due care.” exercise to instruct on the defendant’s theory give failing of the case to “No. 9 requested defendant’s instructions Nos. where “You are instructed that 6 and 9 which it claims covered performing a cer- is tain act and also the he is safe method of theory case, support of the and in method and unsafe this contention asserted that rule adopts plaintiff the unsafe method jurisdiction is well settled in this against to entitled recover not party litigation to is entitled to have provided a the defendant who has safe theory his of the lawsuit submitted to And in this connection if method. proper under instructions, if find and believe from the evidence this case that for this proper there is to there was a evidence sustain it. Cit- plaintiff in, which was to sit ing, Miller, Mountcastle v. 66 Okla. facing right direction, in- 1057; 166 P. Southwestern Bell Tel. Co. using attempted that chair she stead to use Ward, v. 200 Okla. 569; 193 P. 2d pointing a chair which was not City Harman, of Tulsa v. 148 Okla. right then and in in the event she cannot recover direction 299 P. cases, quo- and other with ver- tations from the Harman case. The be for the defendant.” dict should rule announced upon therein and relied argues herein is: that under pleadings adduced, duty keep premises “The reason- give mandatory duty of the ably applies safe for only invitees or these instructions others of similar defects or conditions which are in the import. nature of pitfalls, dangers, traps, hidden snares, like, they are In the answer this connection not known to the invitee and would alleged: not be' observed him in the exer- ordinary cise of premises care. “Defendant states thereof where and condition fell that “The invitee assumes all normal open plaintiff, and obvious ordinary upon risks attendant the use nothing concealed from her premises, and the owner or oc- fully pos- and she sible is assumed the risk cupant duty is under no to reconstruct injury, by reason whereof premises or alter so as to obviate precluded recovering against from dangers, known and nor is he obvious this defendant.” resulting liable an invitee danger from should which was obvious justify The evidence relied have been in the ex- observed giving of such instructions consists ordinary C. ercise of care. J. 837 description of witnesses’ of the room Par. 244” occurred, together the accident proffered pictures fol- instructions of the room and furni- ture, lows: which showed that all such con- open prior had which and obvious and she did ditions were to her long plainest period nature, violated remained the same for laws of occurred; childhood; laws learned in time the accident before rea- guilty son thereof testified that went contrib- utory negligence every pay her the office month to barred covery. particular case, supra. bill; had been to the Harman But no that she complaint happened in prem- of the condition this accident place where by plaintiff. accident, and ises was made She com- prior the summer plains only now same room was employee carelessly defendant’s then. *3 negligently removing chair, the plain- the that discloses The thought she was offered her. No con- the credit of office the went tiff department flicting testimony was offered on this the defendant issue; fact, only the issue involved item getting a credit of purpose negligence was as the of defendant a out; office was straightened that the through agent, Morgan, Mrs. and employees, call- large room seven contributory plaintiff. the of had Each interviewer ed interviewers. complaint No is made of the instruc- was lo- information desk An desk. questions. tions on these The instruc- room the entrance near cated given fairly reasonably as tions their busi- state customers the presented the in the case to the issues employee of the to an ness jury. which interviewer them advised who requested The no instructions covered that plaintiff advised see; was Therefore, interviewers, material issue the case. Morgan, one Mrs. properly request- trial Morgan the court refused Mrs. care of her. take would which, although ed instructions correct busy ladies at her with two then was law, abstract of statements were not the other desk; a customer one was applicable jury. to the issues before the companion Plaintiff of the customer. by employee advised was proposition In defendant’s second a seat desk to have information urged is the verdict of the Morgan, in- Thereafter, Mrs. wait. by excessive, was the amount terviewer, informed passion prejudice verdict The chairs which two next. indicated, reason thereof ladies who occupied two been granted. a new trial should have been near Mrs. still were preceded arose Morgan’s general Mrs. desk. well established rule is put then chair back. She one shoved that unless there' has been an abuse chair, straight- the other discretion, ruling on her hand the trial court’s said, “Have a seat.” ruling around a motion for a ened it new court’s damages are excessive will attempted thereupon sit S., Appeal 5 C. not reviewed. J. indicated, chair down Error, §1626; Jordan Bus Co. v. doing so, Mrs. act as she was Garnand, 173; 203 Okla. 225 P. 2d away from Morgan pulled Partridge, Okla. Bucktrot v. Thereupon, plaintiff fell her. 265 P. This the Bucktrot injuries hip right and sustained case, supra, followed the rule announced sought. damages were which the syllabus, Kent, Chancellor and in the paragraph No. said: requested of defend- instructions evidently prepared under ant theory personal “In a suit for danger injuries, before a verdict of the warning was visible, such that excessive, aside it must will be set appear as the con- to her attention to call needed the verdict so excessive chair, and that position of the or mankind, blush, dition at first as to strike position in beyond by placing all measure unreason- herself “Q. Then, from the outrageous man- summer and such as able ifestly after had the find to have been shows the progression narrowing joint partiality, preju- of that passion, actuated space; correct, sir? A. That corruption.” is that dice, or correct. supra, case, Here, as in the Bucktrot “Q. Now, you took her under numerous cases sus- cites you? didn’t at that similarity contention, tain its Yes, sir. there to the case the fact situation “Q. What the first kind of apropos treat- prompts quote us to at bar you gave ment her? A. There was a opinion therein, which is: good deal of discussion as to whether thing it would be be the best the best observed, however, will be “It —what thing to do. You under- opinions writ- the authorities cited are type case, stand in this with Miss Clause the possibility I discussed years ago, ten will and this court several advisability judicial fact take notice things of various we could power purchasing a dollar suggested I to her I do. then that today few much less than it was a Q. thought right Go want this? years ago; earning capacity —do ahead. of a man or woman is much more to- day, when in dollars measured thought probably “A. I that ultimate- years ago, cents, than it was a few ly she would have to have tendency during recent and the is toward dicts to stand than were few *4 her, made but stiff so it wouldn’t hurt larger allowing much ver- things there were other we could permitted a try do to try to avoid that. to She elected years ago. things do, that we could which improve it, thing so the first “There in the prejudice record put did, hospital we we put her in the and She passion to indicate and to- legs. traction of her on both jury, defendant on the ward of the gotten walking tendency had to to with a say by and, unless we are able to cross, walked, her knees when she amount of the verdict alone that such increasing, and so that was and we had assign- existed, we overrule this must something try get to do to to her knees ment of error.” apart. put weights We her in bed with pull legs gradually on and tried to both stipulated It was that legs bed; that her to the corners expectancy old and had a life by gradual is, separate trac- her knees years. of 21.63 tion. shown when in- It was that “Q. Doctor, successful, that that Was jured earning capacity $1,000 had an yes Well, of treatment? character and year; had incurred or ex- a she to the extent no. It was successful separate $3,012.12 her knees pended to the sum of for doctors we were able relatively pain-free some, and she was hospital and nurses’ services very I felt She and both in traction. bills; X- medical she underwent it, encouraged soon as about but as ray surgery relief treatment began got up, to she have she aggravated of her from the condition hip pain her so in currence injury. hip In this caused from the say it was not I would O’Donoghue, Dr. Don H. connection analysis. in its final success joint specialist, qualifi- whose bone and “Q. outlining thing you ad- admitted, next after was the cations were What to do under consideration X-rays or took vised his various examinations observa- had her under for her? A. We condition, hip general time, period of for a considerable tion follows: testified as hip particularly with reference gradually “Q. words, joint. to me to In from the time— It seemed other X- worse, in the 1945, revealed getting 1942 on wasn’t from X-ray any appreciable change opinion, rays. manifested That in joint space narrowing change? change. A. Little or no further by absorption bone, and getting brought so she was about and caused very joint. In little the mean- this fall Store, she had in Brown’s time, ward, quite you her knee had moved further for- history? received a IA. mid-line, again we had think that was the immediate cause of discussion, considerable and I told necessary when it operate ang- her we could was; her and yes, sir. way ulate the bone in such a that we “Q. And was that the immediate get weight would on; a new to bear pain cause of had, which she is, bearing weight instead of from time suffering which she was at rough irregular chewed-up on this you Yes, saw her? A. sir.” area, we could move the head around get weight some and her to bear per- In answer as to the cause and weight normally borne, rather should be the manency he testified: top head, which is quite than on the rim of it. She was “Q. Now, then, Doctor, assuming that agreeable that, is, accepted lady seriously this had been in 1930 ill surgery, operated the June of 1946. and she was seriously to ill and in 1940 she was up when Dr. Goldfain saw her last then she took “Q. then, Doctor, opera- Now employment at such work as clerk you performed June, 1946, tion Miss Emma in can candy Park-O-Tell, wrapper Clause, jury, tell get Beverly’s, and that she was able to language understand, we can I relatively walk free from understand, ordinary lay language, pain, her unless she twisted ankle exactly you what did. A. I can show fashion; leg her in an unusual moved you picture. on the That would be eas- 27 or then 1945 —December ier. Store, she fell in Brown’s a chair was removed where she “Q. thing you What was the first did thought going down, to sit — putting with reference putting after thereafter, that and tion she was hospital? A. You finally condi- came mean after traction? January in in or Feb- you; rurary, when she came “Q. Yes, operation. sir. The A. We your opinion fall was suffi- made an incision down the side of her producing cause of cient and was the thigh; exposed bone, thigh bone, her? the condition in which found *5 hip, below her and then with chisel . . . Yes. hammer, in cut it two about an inch or hip, so below the and then “Q. upon your experience Based you thigh understand and get bent orthopedic surgeon and in ortho- inward, then, outward, in order to it pedic work, your knowledge of this angulated we or bent it at Right. case; right? A. woman’s is that was, bone, the cut so the “Q. Doctor, there, straight, instead of angle made an degrees.” or the condition that is there it of 30 about present permanent that a con- He further testified: dition? A. Yes.” “Q. this, turn, And did in when that Goldfain, family physi- Dr. crush from the fall occurred to that cian, substantially testified Dr. as did hip, bring condition, did it cause and O’Donoghue. pain? bring Did that pain hip? about and cause the A. I think The evidence that, together with the fact physicians and others witnesses was lighted up arthritis, caused sufficient to establish the hip; yes. her to have damage defendant elements “Q. Now, then, Doctor, and amount all claimed medical Emma plaintiff. did for Miss following Clause n first saw It was the function of her, on reference Dr. properly Goldfain, evaluate these opinion, matters. It was attributable position see position better the witnesses damages this court than evaluate the appeal. damages question excessive motion in its raised trial, after due delibera- new without tion, was overruled motion recovery allowed reduction question is jury, and the same appeal. this raised in damages proper are What elements questions and measure generally law, the amount but of damages jury. question for the ais S., Damages, J.C. §176. herein, Applying announced the rules error, and, therefore, we find
judgment affirmed. V.C.J., LUTTRELL,
ARNOLD, C.J., DAVISON, JJ., con- and CORN and except HALLEY, J., as to cur. concurs WELCH, GIBSON, and O’- amount.
NEAL, JJ., dissent.
WELCH, (dissenting). J. I think court committed reversible error violating well established rule re- quiring theory of the defendant’s presented defense be Spiers City, Bodovitz, Oklahoma appropriate duly requested instruction in error. by defendant when there City, tending Adams, Bohanon & Oklahoma establish such defense. error. say I am authorized to that GIBSON JOHNSON, J. O’NEAL, JJ., Claude W. concur in this dis- brought this action in sent. the district against county, Oklahoma, of Oklahoma
Phil A. Cornell. parties referred herein will be CORNELL v. MORGAN. they appeared court, *6 i.e., Claude W. Sept. 25, No. 34510. Phil A. Cornell as defendant. P. 2d 946. alleged petition his February 1, 1947, entered into he agreement defendant, with where- oral paid per to be a ten cent he was paid (10%) commission on rentals equipment pipe or oil well drill defendant; him rented negotiations of his a result Producing Refining Company, Denver