Muskogee Electric Traction Co. v. Hairel , 46 Okla. 409 ( 1915 )

Defendant urges many assignments of error; but for a proper review of this case, it is thought necessary to consider only the errors alleged in giving said instructions numbered 4 and 10, and in overruling the motion for a new trial.

Under the provisions of the contract entered into by and between the contractor and defendant, giving defendant the right to discharge such employees of the contractor as might not meet with the approval of defendant, upon the grounds stated in the provisions of the contract hereinbefore set out, and the provisions, giving defendant the authority to adjust and settle all unsatisfied claims for damages to persons and property, resulting from the negligence of the contractor, his agents or employees, in performing the contract, and to pay the same to the parties injured out of the compensation to be paid the contractor for the work contracted to be done, the contractor is not an independent contractor, but the agent of defendant company, the principal, who is liable for the acts of his agent within the scope of his authority.Chas. T. Derr Construction Co. et al. v. Gelruth, 29 Okla. 538,120 P. 253, and authorities there cited. Under our holding that the contractor was not an independent contractor it is unnecessary for us to pass upon the question of whether or not the work contracted to be performed was intrinsically dangerous, and as to the same we express no opinion.

Instruction numbered 4, given in the general charge of the court to the jury, left the question of whether or not the contractor was an independent contractor a question of fact, to be determined by the jury, which was error. In Chicago, R.I. Pac. Ry. Co. v. Bond, Adm'r, 148 P. 103 (recently decided, but not yet officially reported), this court held that:

"Whether he was or was not an independent contractor is a question of law for the court to determine from the face of the contract, construed in the light of the surrounding circumstances."

The court should have instructed the jury that the said contractor was not an independent contractor. While the giving of said instruction numbered 4 was error, the same being more favorable to defendant, under our holding that the contractor was not an independent contractor, and that the court should have so charged the jury, than defendant was entitled to, the error committed was therefore harmless.

Great learning and industry have been shown in the preparation of the briefs of both counsel in this case, and many authorities are cited, particularly as to the measure of damages in this case; but the question of the measure of damages in this case is not an open one in this jurisdiction. In an action by a parent for the wrongful death of his child, where there is no evidence which shows the dependent condition of the surviving parent, and the disposition of the child in its relation to the parent, the measure of damages to which the parent is entitled is limited to such an amount as would compensate him for the loss of the child's services to the time of his majority. Shawnee Gas Electric Co. et al. v. Motesenbocker, 41 Okla. 454,138 P. 790. In Missouri, K. T. Ry. Co. v. Horton, 28 Okla. 815,119 P. 233, this court held:

"In an action by a parent for the loss of the services of his minor child, the damages to the parent is limited to such as will compensate him for the loss of the child's services to the time of his majority, * * * and the jury may consider that with age, growth, and experience the value of the child's services would increase, although they cannot consider that the child might, if not injured, engage in any particular calling."

See, also, Williams v. S. N. Ala. Ry. Co., 91 Ala. 635, 9 So. 77.

Without pleadings or evidence upon which to predicate the same than the negligent and unlawful killing of said child, and that she was 3 1/4 years old, a verdict of $10,000 is a mere conjecture of the jury, and so excessive as to warrant the conclusion that as a matter of law, it is due to passion and prejudice. Rhyne et al. v. Turley, 37 Okla. 159, 131 P. 695. The court in refusing to grant defendant a new trial, committed reversible error, which was not cured by the remittitur of $6,000, made at the suggestion of the court, against the objection of defendant. The proper, or at least the better, practice under conditions named is to grant a new trial. Sloanv. N.Y.C. H.R. Ry. Co., 1 Hun. (N.Y.) 540; Tunnel Min. Leasing Co. v. Cooper, 50 Colo. 390, 115 P. 901, 39 L.R.A. (N.S.) 1064, Ann. Cas. 1912C, 504.

This cause should be reversed and remanded.

By the Court: It is so ordered.