The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1908-08-08
ISUSTA|NS
LOWER
COURT
SUPREME COURT PASSES
UPON cHocTAW RAIL
ROAD CASE
OPINION WRITTEN BY
CHIEF JUSTICE WILLIAMS
Suit for Damages for Injuries
Sustained Through NegIi-
genes Of Employees

Chief Justice Williams has made
public his decision in the case of the
Choctaw, Oklahoma & Gulf railroad
company VS.. Mvra Burgess and others
appealed from the southern district
OF Indian Territory, Ardmore. The
lower court awarded the plaintiff. Mrs.
Purgess $500 damages for injuries
sustained, Il as alleged. through the
negligence of the railroad employees.
! Mrs. Burgess sued for $25.CC0 and the
corporation appealed. Judge Williams
refuses to displace the Judgment OF
the lower court. The syllabus fol-
lows:
A general demurrer does not raise
the question of defect of parties.
Same must be taken advantage or BY
special demurrer or answer. and as
\ general rule, when not so done can
not be raised on appeal.
When a person is unnecessarily
jtired rs party 1t does not result in
g defect of parties plaintiff, but in mis-
itinder, or excess, of such parties
and cannot be taken advantage OF by
demurrec, but by motion, and when
such question is not raised In the
coart below will not be entertained
Oh appeal
a party desiring to take advantage
Of defect of, or misjoinder or an ex-
cess, of parties plaintiff, must prompt.
ly interpose an objection in the man
her provided by law; and failing to
do so, he will not be permitted 90 spec
uiate upon q favorable verdict, anG
when afterwards he is disappointed by
an adverse finding of the jury. be al.
lowed to raise such question, either IN
motion for a new trial or in the ap-
pellate court
AS to whether or not the question
Of de.ect OF parties, or misjoinder or
excess Of parties, when neither such
appears from the face of the petition,
Tor Is known to the defendant until
disclosed at the trial in the examin.
alton Of Witnesses can be raised then
ly proper objection to the introduct-
tion OF evidence, or upon requested III
structions is not determined, so far as
the procedure in force in this state,
Following the rule in force in the IN
dian Territory prior TO its admission
as a part of the state of Oklahoma,
the question of misjoinder Of parties
could not be raised for the first time
by a motion for a new trial; but must
have been first taken advantage OF
either by motion or answer.
And under the rule In force in the
same jurisdiction. when two causes OF
action ara perfectly stated in the com
plant or petition, and II can not be
determined whether or not there is q
misjoinder OF causes OF action, the
remedy was by motion to require the
| plaintiff to make its complaint or pc
tition more definite and certain; ani
then IL Il appeared that there was Z
y misjoinder OF such causes OF action
the point should have been taken ad
vantage of by motion.
Under the procedure now in force
In this state, misjoinder of causes o
action should be raised by demurrer
When the servants and employees o
a carrier of passengers stops its trail
for the purpose OF taking on or let
ting or passengers, III is its duty L
hold same d reasonable length OF tint
20 allow such passengers 4
board or alight with SAFETY, and, IN tn
absence OF cOntributOry negligence Of
tic part Of the passengers. the car
rier Is liable for Injuries resulting
from a failure 10 perform this duty.
Whenever the court. in its Instruct
Ions, gives correct Interpretation
and exposition of the law as II relate
20 the admitted or uncontroverte
facts in the case. there is no groun
for complaint OF error
Under subdivision 4, section 449
Wilson's Revised and Annotated sta
uies, Oklahoma. 1903; Sec. 4116. KaI
sas Csde, 1885; Sec. 3o6 Kansas Cod
Of Civil Procedure (Sec. 5f53, Mans
fields Digest Arkansas. 1884: SCI
1856. Ind Ter sta. 1891. here IN
verdict is for damages, and IL al
lneals that same. were given unde
he influence OF passion or prejudice
it Is the duty Of the appellate cou
40 reverse and remand for a new tria
in some cases directing The trial e0ul
70 give The plaintiff the opinion TO r
nit the excess. and allow Inn TO tah
Judgment ior the residue.
Under subdivision q, Sec if9S, WI
81 MS Revised and Annotated Statute
pklahoma. 1873; 0Sec 4Il6, Kanse
Code 1885 Sec. 1908. Gee 4tTs, IA
Fas Code, 1885; Sec. 5l51. Mansfield
rigest, Arkansas, 1884: Sec 1886. IN
Ter. stat, lS99) where there Is Il
timony reasonably ten1sng 10 suppo
the issues upon which the verdict
based, an appellate court viii not al
turb the findings Of the lower c0ui
Appellate courts shoaId sparing
exercise the power Of granting ne
trials VA the erfead Of excessive dal