Opinion
No. 21542
Opinion Filed April 25, 1933. Rehearing Denied May 23, 1933.
(Syllabus.)
1. Appeal and Error — Trial — Review — Sufficiency of Evidence — Failure to Urge Objection Below.
Where the defendant demurs to the evidence in chief of the plaintiff, and defendant afterwards introduces evidence, and thereafter plaintiff introduces further evidence, and in rebuttal, and the defendant fails to renew his demurrer to all the evidence, or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict on review in this court is conclusive so far as such evidence is concerned, except as to excessive damages, appearing to have been given under the influence of passion or prejudice.
2. Appeal and Error — Harmless Error.
The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Section 252, O. S. 1931 (section 319, C. O. S. 1921).
Appeal from District Court, Custer County; E.L. Mitchell, Judge.
Action by Maude Elena Brannon against J.R. Hinshaw and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Meacham, Meacham Meacham, for plaintiffs in error.
C.S. Gilkerson and Dan Nelson, for defendant in error.
The defendant in error recovered a judgment against the plaintiffs in error for a personal injury which she received while in their employment. From that judgment the defendants appealed.
The plaintiffs in error herein contend that there was no actionable negligence on the part of the defendants; that the plaintiff was not acting within the scope of her employment at the time she sustained the injury complained of; that incompetent evidence was admitted over the objection of the defendants, and that the trial court made prejudicial remarks during the progress of the trial.
We have carefully examined the evidence which the plaintiffs in error contend was incompetent and the remarks of the trial court complained of, and we find no reversible error therein. Section 252, O. S. 1931 (section 319, C. O. S. 1921).
The other contentions of the plaintiffs in error may not be considered by this court under the rule stated in Watson v. Doss, 151 Okla. 132, 3 P.2d 159, as follows:
"Where the defendant demurs to the evidence in chief of the plaintiff, and defendant afterwards introduces evidence, and thereafter plaintiff introduces further evidence, and in rebuttal, and the defendant fails to renew his demurrer to all the evidence, or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict on review in this court is conclusive so far as such evidence is concerned, except as to excessive damages, appearing to have been given under the influence of passion or prejudice."
See, also, Local Bldg. Loan Ass'n v. Hudson-Houston Lbr. Co., 150 Okla. 44, 3 P.2d 156; Stanfield v. Lincoln, 150 Okla. 289, 1 P.2d 387; Abraham v. Gelwick, 123 Okla. 248, 253 P. 84; Advance-Rumley Thresher Co., Inc., v. Alexander, 156 Okla. 150, 9 P.2d 934, and other decisions of this court to the same effect. While the plaintiffs in error demurred to the evidence in chief of the plaintiff, they did not renew their demurrer after the plaintiff had introduced her evidence in rebuttal, and they did not ask for an instructed verdict.
We find no error in the judgment of the trial court, and it is in all things affirmed.
RILEY, C. J., CULLISON, V. C. J., and McNEILL, OSBORN, BAYLESS, and BUSBY, JJ., concur. SWINDALL and WELCH, JJ., absent.