113 P.2d 393 | Okla. | 1941
The defendant in error, hereinafter referred to as plaintiff, a minor, instituted this action by his father and next friend against the plaintiff in error, hereinafter referred to as defendant, to recover damages in the aggregate sum of $2,690 for personal injuries and loss of time and medical expenses incident thereto alleged to have been incurred as the result of the negligence of the servants of the defendant in unloading a piece of pipe. Answer consisted of an unverified general denial.
The cause was tried to a jury. The defendant demurred to the evidence of the plaintiff, but when his demurrer was overruled, introduced evidence in his defense and failed to move for directed verdict in his favor. The defendant also failed either to take or save any exceptions to the instructions which were given by the court. The evidence was in conflict in some respects, but was uncontroverted insofar as plaintiff's injury was concerned, which showed that plaintiff had sustained the loss of about two-fifths of the nail on a great toe, same being dead from the end back, and the nail bed being permanently injured. The jury returned a verdict in favor of plaintiff and assessed his recovery at the sum of $535. The defendant in his motion for new trial urged that this verdict was excessive, and upon hearing had upon said motion the court reduced the recovery to $400, overruled the motion for new trial and rendered judgment in favor of the plaintiff for $400.
The defendant has perfected this appeal and urges two propositions, which are, in substance; (1) That the judgment is still excessive; (2) that the court confused the jury in its instructions upon the question of agency. Under the first contention so presented the defendant seeks to measure the right of recovery by the schedule of compensation in the Workmen's Compensation Act, section 13356, O. S. 1931, 85 Okla. St. Ann. § 22, and cites numerous cases from various jurisdictions wherein verdicts for injuries involving toes were involved. The schedule of compensation in the Workmen's Compensation Act, supra, has no application whatsoever. The compensation provided under said act is in lieu of wages and not for injury sustained. Burnett-Hauert Lumber Company v. Thompson,
Under the second proposition the defendant likewise seeks to obtain a review of instructions given by the court although no exceptions were taken or saved thereto. This is likewise not permissible. Roger Mills County Co-op. Ass'n v. Neice, supra; Wilhite v. Brin,
Judgment affirmed.
CORN, V. C. J., and OSBORN, BAYLESS, GIBSON, and HURST, JJ., concur.