The plaintiff commenced his action in the district court of Jefferson county against J.W. Jones and Joe Williams for damages on account of personal injuries. The petition sets forth that the plaintiff was traveling along the highway on a loaded wagon and that the defendants ran an automobile against the loaded wagon and team of plaintiff which caused the wagon to turn over, resulting in plaintiff's leg being broken just above the ankle, and other minor injuries. The petition states a cause of action against the defendants jointly. The defendants filed their motion to require the plaintiff to show the grounds for joint liability. The court overruled the motion. Ordinarily only the driver of the car is liable and for this reason the court ought to have sustained the motion. However, the overruling of the motion did not operate to prejudice the rights of the defendants in the trial of the cause Thereafter, the defendants filed their general denial and in the trial of the cause the jury returned its verdict in favor of the plaintiff for $450. The defendants appealed the cause to this court and as sign the overruling of the motion and general demurrers to the petition as error, and also complain of the giving of certain instructions to the jury. It is further claimed by the defendants that the evidence is insufficient to support the verdict as returned in the cause. The evidence in this case did not show that the defendant willfully inflicted plaintiff's injuries, or that the injuries resulted from a wanton disregard of plaintiff's rights on the highway. The evidence showed that plaintiff was driving a loaded wagon drawn by a team of horses along the highway, and that the defendant, who was driving a Ford roadster, approached the plaintiff from the rear and in attempting to pass the plaintiff ran the automobile against the team. As a result of the collision the loaded wagon was caused to turn over and plaintiff suffered the injuries above set forth. The evidence showed that J.W. Jones was driving the car and did not show that Joe Williams was in any manner connected with the causes which resulted in plaintiff's injuries. Under the proof in this case it was error to submit an instruction on the question of exemplary damages to the jury. Western Union Tel. Co. v. Reeves, 34 Okla. 486, 126 P. 216. However, as the verdict of the jury was merely for actual damages, the giving of the instruction became merely technical error, and the verdict in the sum of $450, when considered in connection with the extent of plaintiff's injuries, would indicate that the defendant's rights were not prejudiced in the giving of the instruction. The evidence in no way connects Joe Williams with responsibility for the cause resulting *Page 117 in the injury, and the verdict against this defendant is not supported by any testimony. The evidence is sufficient to support the verdict returned against J.W. Jones as defendant.
If there is any testimony that reasonably tends to support the verdict of the jury, the judgment will not be reversed on appeal to this court. Lauderdale v. O'Neill et al., 74 Oklahoma, 177 P. 113.
We have examined the instructions and proceedings in the trial, and find the issues were fairly tried and submitted between the plaintiff and the defendant J.W. Jones.
Therefore, it is recommended that this cause be affirmed as to J.W. Jones, and reversed as to Joe Williams for further proceedings in accordance with the views herein expressed.
By the Court: It is so ordered.