Cavanagh v. Johannessen , 57 Okla. 149 ( 1915 )

Original opinion withdrawn and modified, and further rehearing denied.

Counsel for defendant strenuously object to that part of the former opinion in this case, which we have withdrawn, wherein we held that the general assignment of errors as grounds for new trial in the language of the statute, "for errors of law occurring at the trial," do not present for consideration of the court the giving or refusing of instructions duly excepted to, for the reason that the language is too general and does not call the attention of the court to the specific error complained of. The writer hereof is still of the opinion that the holding in the original opinion in that particular was correct and supported, not only on general principle, and by a long line of authorities of other states, but by the several decisions of this state; and without further argument we call attention to the following cases: Wood v. Farnham, 1 Okla. 378,33 P. 867; Carter Bro. v. Missouri Mining Co., 6 Okla. 15, 41 P. 356; Boyd v. Bryant, 11 Okla. 56, 65 P. 940;Baker v. Tate, 41 Okla. 355, 138 P. 171; Glaser v. Glaser,13 Okla. 389, 74 P. 944; Shuler v. Collins, 40 Okla. 126,136 P. 752, and several other cases which sustain that doctrine and practice.

However, while my associates agree with me upon the proposition of law, they seem to be of the opinion that the practice has been so general to the contrary that it might work a hardship to establish a strict rule of that kind at this time. We therefore withdraw from the former opinion our holding in that particular. However, our former decision was not based entirely upon that particular question. We stated therein that we had carefully examined the requested and refused instructions, and were unable to say that the giving or refusing of the same by the trial court was prejudicial to the rights of the defendant. Our language in the original opinion was:

"We have examined the instructions given, as well as those refused, and upon consideration of the entire record, we are of opinion that no prejudicial error was committed in the giving or refusing of instructions."

We have gone over the case again, and while we do not discuss with particularity all the different points and propositions raised by the defendant, we have not overlooked any of them, but on the contrary have given them all careful consideration, and are still of the opinion that counsel has failed to point out wherein the trial court committed such error as would justify a reversal of the case.

From a careful consideration of the record, we find that the case was carefully and fairly tried by the court, assisted by able counsel on both sides, and the verdict returned by the jury appears to be fully sustained by the evidence. The statutes of this state require this court to disregard any error in the pleadings or proceedings which does not affect the substantial rights of the party appealing. St. Louis S. F. R.Co. v. Houston, 27 Okla. 719, 117 P. 184.

Further rehearing should be denied.

By the Court: It is so ordered.