Anthony v. Colvin , 191 Okla. 476 ( 1942 )

I concede that the plaintiff in this cause stated grounds of negligence; in addition to negligence he alleged that the injury sustained by him fell within the purview of and was covered by the Workmen's Compensation Act. In this connection he also alleged that his employer failed to comply with the requirements of the Workmen's Compensation Act as to procurement of compensation insurance, and that by reason of such failure to comply with the act in this regard the defendant was subject to a common-law action for his negligence, which resulted in the injury complained of by the plaintiff, without the benefit of the ordinary common-law defenses of contributory negligence, assumption of risk, etc. The defendant stipulated that he did not comply with the act and, in effect, admitted that he was subject to a common-law action for negligence without such common-law defenses.

I also concede that the evidence on the part of the plaintiff was ample to sustain a finding that the defendant was negligent and that his negligence was the direct and proximate cause of plaintiff's injury.

The record discloses that the defendant did not save exceptions to any of the instructions as required by 12 O. S. 1941 § 578, but he did call to the attention of the court his objection to practically all of the instructions by writing thereon "Given by the Court and excepted to by the defendant. Moss Young and Miller, Lytle Wildman, Attys. for Deft." However, he did not procure the signature of the judge allowing his exceptions as required by the foregoing provision of our statute.

I further agree that all errors committed by the trial judge in his instructions on nonfundamental matters were waived by the defendant by his failure to comply, in the manner pointed out, with the foregoing statute. However, fundamental errors in the instructions of the trial court do not have to be called to the attention of the court in any prescribed statutory manner.

It is the duty of a trial court to instruct the jury on all issues between the parties litigant. See 12 O. S. 1941 § 577, subd. 6. The trial court, in the instant case, should have instructed the jury, on its own motion, on the issues raised by the pleadings and evidence, and on appeal this court should review the instructions, even in the absence of exceptions thereto, to determine whether they are free from fundamental error.

In Mason v. McNeal, 187 Okla. 31, 100 P.2d 451, we held:

"Where exceptions are not saved to instructions as required by section 360, O. S. 1931, 12 Okla. St. Ann. § 578, this court will review such instructions only to determine whether they are free from fundamental error."

In the body of the opinion, at page 453, we said:

"But, where, as here, no exceptions are saved, the review will be confined to prejudicial error, erroneous statement of fundamental law, appearing upon the face of the instructions. See, also, Williams v. Otis, 155 Okla. 173, 8 P.2d 728."

See, also, in this connection, 39 Am. Jur. § 120, at page 131; First National Bank v. Cox, 83 Okla. 1, 200 P. 238; Mills v. Hollinshed, 82 Okla. 250, 200 P. 200; Liberty National Bank v. Semkoff, 184 Okla. 18, 84 P.2d 438; and Harris et al. v. Smith, 149 Okla. 277, 300 P. 392.

This cause of action is founded solely and entirely upon alleged acts of negligence. The trial court, in its instructions to the jury, never as much as intimated what acts of negligence the plaintiff relied on. From the instructions given you cannot possibly tell what acts of negligence the case and judgment are founded upon.

This additional circumstance is called to our attention in this case which, under all the circumstances maintaining, no doubt prejudiced the defendant's rights. The trial court not only wholly failed to tell the jury what acts of negligence the plaintiff relied upon, but told the jury that the plaintiff contended that the defendant failed to carry compensation insurance as provided by our Workmen's Compensation Act, and that he was for this reason, therefore, suable in a common-law action for negligence. The effect of this instruction, in my judgment, was prejudicial to the defendant, for it, no doubt, had the effect of producing in the minds of the jurors the conclusion that the plaintiff's right to recover rested upon defendant's failure to comply with the Workmen's Compensation Act in regard to compensation insurance. By reason of the stipulation of the defendant hereinbefore referred to, the matter of the jurisdiction of the district court to entertain and try the suit based on the negligence of the defendant was not an issue for either the court or the jury. Under the circumstances, no instruction was necessary and the instruction given was, in my judgment, prejudicial to the defendant and constituted fundamental error.

The cause should be sent back for a new trial.

I respectfully dissent.