116 P.2d 891 | Okla. | 1941
The defendant in error, hereinafter referred to as plaintiff, a minor, by his mother as next friend, instituted this action against the plaintiff in error, hereinafter referred to as defendant, to recover the sum of $10,000 as damages for personal injuries alleged to have been sustained as the result of a collision between an automobile in which the plaintiff was riding as a guest and one which was owned and driven by the defendant.
The answer of the defendant was a general denial, a plea of contributory negligence, and unavoidable casualty. Trial was had to a jury. The jury returned a verdict in favor of the plaintiff and assessed his recovery at the sum of $300. Judgment followed the verdict. Motion for new trial was overruled, and defendant has perfected this appeal.
The delict of the defendant is not here involved, the sole issue presented being whether the trial court erred in refusing to give two requested instructions and the giving of instruction No. 14.
The instructions so requested read as follows: *316
"You are instructed that in this action the plaintiff is not entitled to recover for any loss of earning capacity sustained during his minority, that is, until he reaches the age of 21 years."
And:
"You are instructed that there is no evidence in this case to show any loss of earning capacity which will be suffered by the plaintiff after he reaches 21 years of age. And you will therefore not consider or allow any damages on that account."
The instruction to which exception is taken, being No. 14, reads as follows:
"If within the purview of these instructions you find for the plaintiff, then he is entitled to recover such sum as will compensate him for his physical impairment, personal injuries, if any, which is a question of fact for you to determine under this evidence, and for pain and suffering, not to exceed in all the sum of $10,000."
The defendant contends that since it was shown by the evidence that the plaintiff was a minor 17 years of age at the time of the accident and a member of his father's household, therefore during the minority of the plaintiff his father was entitled to his services and earnings. See section 1685, O. S. 1931, 10 Okla. St. Ann. § 5; Missouri, K. T. R. Co. v. Horton,
It does not appear, after an examination of the entire record, that any constitutional or substantial statutory right of the defendant has been infringed by reason of the failure to give the requested instructions or by the instruction which was given. Under these circumstances it is the duty of this court to treat the error, if any, as harmless. Section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068. This case appears to be a proper one for the application of such statutory direction.
Judgment affirmed.
CORN, V. C. J., and RILEY, OSBORN, BAYLESS, and DAVISON, JJ., concur. *317