This is an appeal from a judgment for damages for personal injuries in an action by defendant in error, Jeanette Myers, a minor, by her father and legal guardian, against plaintiffs in error, Phillips Petroleum Company and Virgil Hardcastle.
Plaintiff alleged that on and prior to January 7, 1943, defendant Phillips Petroleum Company owned and operated a pipe line which extended across the premises of which plaintiff's father was a tenant and upon which he and his family resided; the pipe line ran through the yard of the premises between the house and barn lot and between the house and a roadway which led to the public highway to the west of the house; the pipe line crossed two well-defined paths through the yard, one leading to the roadway and the other to the barn lot; these paths were continuously used by the Myers family; the yard extending from the house to the barn was a playground used by the children, including the plaintiff; the pipe line crossed the path leading to the roadway about 30 feet from the house, and crossed the path leading to the barn about 50 feet from the house; on December 28, 1942, defendants started removal of the pipe line by digging a ditch to take up the pipe; defendant Hardcastle, employee of defendant Phillips Petroleum Company, was the foreman and superintended the work and participated in the digging of the ditch; the defendants, through their agent, orally agreed with Mr. Myers that the pipe line would be removed and the ditch refilled within one day; on that date the ditch was opened in the yard across the path, about 2 1/2 feet deep and 1 1/2 to 2 feet wide, exposing the pipe line in the bottom of the ditch; at a point about 50 feet south of the kitchen door and across the footpath leading to the barn, defendants caused to be erected a bank of earth on each side of the ditch, composed of loose dirt and rock excavated from the ditch, approximately *Page 153 2 feet high, parallel to and extending along the ditch on each side thereof, thus creating a dangerous condition consisting of an open pit from the top of the loose dirt and rock to the steel pipe, a distance of 4 feet or more, directly in the pathway; the pit remained open and unguarded for a period of 18 days; on January 7, 1943, plaintiff, Jeanette Myers, as was her custom, had been playing in the yard and while returning to the house along the pathway and attempting to cross, as the result of the loose rock and dirt under her feet giving way, fell head downward into the ditch so that her head crashed against the iron pipe, resulting in serious, painful, and permanent injuries.
Plaintiff's fall into the ditch and her resulting injury were proximately caused by the joint and concurring negligence of defendants in: Hardcastle's erecting an insecure mound of earth, two feet or more high, across the pathway on each side of the ditch; the omission of defendants to provide a reasonably safe and proper means of crossing the ditch, and in creating the mound of earth so that it was insecure to footing and dangerous to children using the pathway; and the omission of defendants to erect proper barricades and guards.
Defendants, and each of them, knew, or with exercise of ordinary care should have known, that the creation and maintenance of the hazard was and would be unsafe to the minor children.
Phillips Petroleum Company denied generally and alleged affirmatively that in removing the pipe line it was acting under a right-of-way contract with the owner of the premises, by the terms of which the right to lay, maintain, alter, repair, operate, and remove lines for transporting oil, gas, and water over and upon the premises involved was granted to it; that the contract was of record in the county clerk's office; and a copy of the contract was set forth in the instrument attached to the answer. The defendant further alleged that all its operations in removing the pipe line were conducted in a good and workmanlike manner and under the terms and pursuant to the right-of-way contract.
The defendant alleged that after the pipe line ditch was opened, the pipe removed, and the ditch prepared for a backfill, plaintiff's father and mother requested defendants to withhold backfilling the ditch through the yard until defendant had removed the pipe line and refilled the ditch through the adjoining field on the land; that the reason for the request was that the father, Ruie Myers, wanted to plow the field. Defendants, pursuant to the request, removed the pipe line and refilled the ditch through the fields before backfilling the ditch through the yard.
Defendant Hardcastle answered by general denial.
Trial to a jury resulted in a verdict for plaintiff against both defendants, in the sum of $25,000, for which amount judgment was rendered. Defendants appeal.
It is contended that the court erred in refusing to admit in evidence an order of the county court of Hughes county, In the Matter of the Guardianship of Jeanette Myers, a minor, in the nature of instruction by the county court to the guardian relative to the claim against Phillips Petroleum Company. Therein it was recited:
". . . Court having heard testimony of witnesses, and being fully advised in the premises, finds that said minor was injured on or about January 7, 1943 under circumstances that indicate that such injuries may have been proximately caused by the fault of said Phillips Petroleum Company. The Court further finds that the sum of Three Hundred Dollars ($300.00) would be fair, just and reasonable compensation for all claims against said company arising out of or in any way pertaining to said injuries sustained by said minor." *Page 154
The county court, by order, granted Ruie Myers, guardian of Jeanette Myers, a minor, permission to institute suit against Phillips Petroleum Company, and the county court approved and directed the guardian to seek to recover by suit or compromise the sum of $300 for all claims and demands, past, present or future, arising out of or in any way pertaining to the accident, or for damages for injuries sustained by the minor as a result of the accident. The court directed the father, upon receiving payment of said sum, to release and fully discharge Phillips Petroleum Company and its agents and all others from all claims or demands arising out of or in any way relating to the accident or the minor's injuries.
This action for damages was commenced May 6, 1944, by plaintiff's mother, Oma Myers, as next friend of plaintiff. Theretofore, on January 5, 1944, Ruie Myers, the father, was appointed guardian of the person and estate of Jeanette Myers, the minor, then seven years of age. On the same day the county court acted as aforesaid.
Defendants contend the order aforesaid was admissible in evidence to impeach the testimony of Ruie Myers and to establish, or attempt to establish, an agreement between the father, as guardian, and defendant Phillips Petroleum Company, governing the sum to be paid on account of the injuries received by the minor.
Phillips Petroleum Company does not allege that it had at any time an agreement with Ruie Myers as to the amount to be paid as the result of the accident or the result of defendants' negligence, plaintiff's injury and resulting damage.
A settlement, or an agreement to settle, a claim or demand is in the nature of an accord and satisfaction. The distinction in jurisprudence between the two is dim and shadowy, 1 C.J.S. p. 464. Accord and satisfaction is an affirmative defense that must be pleaded. Our rule is that an "accord and satisfaction and other transactions closely allied. . ., such as a compromise agreement, executory accord and novation, in order to be available as a defense, must be specifically pleaded." Gasper v. Mayer, 171 Okla. 457, 43 P.2d 467.
The order of the county court was not offered in evidence for the purpose stated by defendants. The order was inadmissible to establish an agreement to settle because of defendants' failure to plead a settlement.
The order was inadmissible to impeach the testimony of Ruie Myers, guardian of plaintiff, as no foundation was laid to impeach the testimony given by the guardian as a witness for plaintiff. The guardian, as a witness for plaintiff, was asked no question on cross-examination and he gave no testimony subject to contradiction by the contents of the order. It was not admissible. The learned trial judge so ruled. In this he did not err.
Error is predicated upon the giving of instruction No. 11, and refusing defendants' requested instruction No. 3A.
Instruction No. 11, given, was to the effect that defendant Phillips Petroleum Company, under the contract by which it acquired from the owner of the land an easement, had right to go upon the land and open the ditch for the purposes of the corporate defendant; that plaintiff, as an occupant of the premises, had right to be upon the premises at the time. The court further instructed that under the circumstances it was the defendants' duty in opening the ditch "to exercise that degree of care and caution that an ordinarily prudent person would have exercised under the same or similar circumstances."
This instruction was correct, as approved by this court. Magnolia Pipe Line Co. v. Ricks, 190 Okla. 145, 121 P.2d 570. In giving the instruction, the trial court did not err.
Defendant's requested instruction No. 3A was substantially the same as the *Page 155 instruction given by the court relating to the respective rights of the parties on the premises, but by the requested instruction defendants sought to have the jury further advised that under the circumstances the only duty devolving upon Phillips Petroleum Company and its agent was to refrain from creating or permitting to exist hidden dangers, such as pitfalls or other latent conditions not subject to observation by persons rightfully upon the premises.
The "doctrine of hidden danger" was recognized in City of Tulsa v. Frye, 165 Okla. 302, 25 P.2d 1080. But in Magnolia Pipe Line Co. v. Ricks, supra, a distinction was made because of a well-defined path leading from plaintiff's home across the field to a pond where water was obtained. In the case at bar the existence of a pathway from the house to the barn is a disputed question of fact.
Many witnesses for plaintiff testified to the existence of the path. A number of defendants' witnesses testified as positively to the contrary. The evidence is in sharp conflict and as a whole is substantially the same as in Magnolia Pipe Line Co. v. Ricks, supra.
By instruction No. 15 1/2 the court submitted to the jury the question of the existence of the path. The instruction as given is correct and the trial court's refusal to give defendants' requested instruction 3A did not constitute a reversible error. The jury's verdict settled the matter of the existence of the path in so far as the view of the reasonable men constituting the jury was concerned.
But it is contended the trial court erred in overruling defendants' demurrer to plaintiff's evidence, and denying defendants' motion for a directed verdict in defendants' favor. This requires an examination of the evidence to ascertain whether it is sufficient to support plaintiff's material allegations. We have made that examination and as a result, find the evidence sufficient, as a consequence of which the learned trial court did not err in overruling defendants' demurrer to the evidence nor in denying the motion to direct a verdict for defendants.
Defendants moved at the trial for an order of the court to appoint a disinterested physician, or physicians, to examine plaintiff in order that he or they might ascertain the extent of plaintiff's injury, if any, and testify according to their findings. The court, upon plaintiff's objection, denied the request.
The court did not indicate why the request was denied; it does not necessarily follow that the court so ruled because the court was without power to require plaintiff to submit to such an examination. However, the rule in this jurisdiction is, and since prior to statehood has been, as shown in City of Kingfisher v. Altizer, 13 Okla. 121, 74 P. 107. In the year 1903, the Supreme Court of Oklahoma Territory ruled that:
"The courts . . . cannot order a plaintiff in an action for an injury to the person to submit to a surgical examination in advance of or during the trial of the cause."
The rule was based upon the rule of the Supreme Court of the United States. Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734. The early decisions of the Supreme Court of the United States were entitled to great weight and were then, in all civil actions where more than $5,000 was involved, binding upon the Supreme Court of the Territory. The Supreme Court of the United States was, during the existence of the Territorial Government, the court of last resort in such civil actions, and as applied to both of the Territories, it was the court of last resort in such civil and criminal cases except as to the court presided over by Judge Parker, which was peculiarly one of original and of final appellate jurisdiction.
The issue was presented to this court after statehood, Atchison T. S.F. Ry. Co. v. Melson, 40 Okla. 1, 134 P. 388. *Page 156 The rule of law in this state is uniform as to a plaintiff's right of exemption.
In Jewel Tea Co. v. Ransdell, 180 Okla. 203, 69 P.2d 69, we held:
"Although a plaintiff in a personal injury case may decline to submit to a physical examination either before or during the trial of the cause, he is not thereby precluded from offering his body or portions thereof in evidence, and if he elects to do so, may not thereafter claim the exemption which he could have previously asserted."
A trial court has authority to direct a plaintiff, in an action for damages for a personal injury, to submit to an examination by an expert selected by the court or defendant where the plaintiff had offered his or her body, or a part thereof, in evidence. Under the circumstances stated, it is not reversible error for the court to deny the request.
The plaintiff in such an action has primary right not to offer in evidence the body. If the body or a part thereof is in evidence and exhibited to the court or jury, the plaintiff may be required to submit to an examination by a physician selected by court or defendant.
Jewel Tea Co. v. Ransdell, supra, supports and affirms the rule stated in City of Kingfisher v. Altizer, supra, and followed in Atchison, T. S.F. Ry. Co. v. Melson, supra. Plaintiff, in the case at bar, did not offer her body or any part thereof in evidence.
Our attention has been called to the rule in other jurisdictions. If we should depart from our own rule to embrace that said to be the majority rule in American jurisprudence, and under the so-called majority rule hold the court had inherent power to direct a plaintiff, in an action for personal injuries, to submit to physical examination by a physician selected by a defendant or trial court, reversal of the judgment would not be necessary. The rule in other jurisdictions, in the absence of a controlling statute, is that the matter is one of discretion for exercise by the trial court. 25 C.J.S. 846.
The application calling for the exercise of the discretion must be timely. The application comes too late if made after the commencement of the trial. If such an application, as here, is made after commencement of the trial, the burden of showing a good excuse for the delay rests upon the applicant and the application will rarely be approved when made after the commencement of the trial. 25 C.J.S. 851. Kansas, Kentucky, Nebraska, North Carolina, Oregon, Texas, Virginia, Washington, and West Virginia so hold.
No request to the court was made by defendants until long after the trial had commenced. Under the general rule, the request came too late. The trial court cannot be said to have labored in error.
Counsel for defendants set out in brief, alleged improper remarks of counsel for plaintiff as a part of the closing argument to the jury. No objections were made at the time. No ruling of the trial court upon the matter was required. Defendants made no exceptions to the remarks of counsel or rulings of the court. This court will not review alleged misconduct of counsel in making alleged inflammatory argument to the jury, in the absence of either an objection or exception at the time. Levy v. Tharrington, 178 Okla. 276, 62 P.2d 641; Westgate Oil Co. v. McAbee, 181 Okla. 487, 74 P.2d 1150; Coalgate Co. v. Bross, 25 Okla. 244, 107 P. 425.
It is contended the verdict is excessive. The verdict is substantial, but there is nothing to indicate that it is so excessive as to shock the conscience of a chancellor. Verdicts of $25,000 or more in actions for damages for personal injuries are by no means uncommon.
According to the evidence, verdict and judgment, plaintiff sustained substantial damages as a result of the injuries. Plaintiff's injuries are of a permanent character. Prior to the injury, plaintiff was an alert and healthy child; she was then a child of less than *Page 157 seven years of age; she weighed 56 pounds. After the injury she weighed 43 pounds. At the time of the trial, the child was two years older; she weighed less than 56 pounds; her skull was injured and enlarged on the top of plaintiff's head; her skull structure was thickened. There plaintiff has a calcium deposit between the bone and the membrane interlining of the skull, resulting in pressure on the brain. Plaintiff's nervous system as a whole was affected by pressure on the optic nerves. Plaintiff's eyesight was not normal. As a result of the injury, plaintiff has a loss of from 20 per cent to 25 per cent vision in the right eye. Her loss of vision in the left eye was from 15 per cent to 20 per cent, and cannot be corrected by lenses. The loss of vision is permanent and uncorrectable, and, according to the experts, may grow worse. Plaintiff suffers severe headaches, as a result of the pressure on her brain, attributed to the injury.
The pressure on plaintiff's brain affects the nerves controlling plaintiff's stomach, as a result of which plaintiff suffers nausea evidenced by vomit occasionally issuing forth from plaintiff.
The testimony of expert witnesses tended to prove dislocation and misalignment between plaintiff's axis, or first cervical vertabrae, and the atlas portion of her spine. Pressure on plaintiff's spinal cord results from this misalignment and dislocation. This pressure affected the nervous system and interfered with the circulation of the cerebral fluids, contributed to the disturbance of the nerves controlling the stomach, and accounts in part for a periodical rather than constant nausea resulting in vomit.
The evidence tends to show the misalignment of the vertabrae causes plaintiff's head to draw backward at times. Such evidence tends to show a general neurotic condition due to the injury.
The verdict and judgment are not excessive when measured by plaintiff's resulting disabilities such as the evidence of experts tends to establish.
An examination of the evidence discloses that the action as a whole was fairly tried.
It is urged that defendants' negligence, if any, was not the proximate cause of plaintiff's injury. One of defendants' acts of negligence charged and sufficiently proved was that the mound of earth erected by defendants in digging the ditch consisted of loose dirt and rocks, about two feet high, near the pit where the iron pipe lay. From all the facts and circumstances in evidence, the jury could well conclude that while plaintiff was attempting to cross the mound, the loose dirt or rock gave way under her feet, throwing her into the ditch as alleged. Although there is no positive evidence to the effect stated, it was incumbent upon the plaintiff only to produce evidence showing the probability of the proximate cause. The questions of negligence and of proximate cause were for the jury's determination. These issues were resolved in favor of plaintiff and against defendants. The evidence and deduction therefrom which might reasonably be drawn support the verdict and judgment.
Affirmed.
DAVISON, C.J., and WELCH, CORN, LUTTRELL, and JOHNSON, JJ., concur. GIBSON and HALLEY, JJ., dissent.