Co. (Mo.), 298 S.W. 88: Abeles v. Bransfield, 19 Kan. 16; Zongker v. Mere. Co., 110 Mo. App. 389; Freeman on Judgments (5 Ed.), par. 481, p. 1041; Farrar v. Wheeler, 75 C.C.A. 386, 146 F. 482; Central of Georgia Railroad Co. v. McNab, 150 Ala. 332; Moline Timber Co. v. Taylor, 144 Ark. 317, 222 S.W. 371; Kenure v. Brainerd A. Co., 88 Conn. 265, 91 A. 185; Chicago Screw Co. v. Weiss, 203 Ill. 536, 68 N.E. 54; Am. Car Foundry Co. v. Hill, 226 Ill. 227, 80 N.E. 784; Donk Bros. Coal Coke Co. v. Retzloff, 299 Ill. 194, 82 N.E. 214; Boggs v. Railroad Co., 187 Ill. App. 621; Orr v. Mfg. Co., 179 Ill. App. 235; Chesapeake O. Railroad Co. v. Davis, 119 Ky. 641, 60 S.W. 14; Cincinnati, N.O. T.P. Railroad Co. v. Troxell, 143 Ky. 765, 137 S.W. 543; Chesapeake O. Railroad Co. v. De Atley, 151 Ky. 109, 151 S.W. 363; Akers v. Fulkerson, 153 Ky. 228, 154 S.W. 1101; Baker v. Railroad Co., 16 L.R.A. 154, 30 Am. St. 471, 51 N.W. 897; Brookhaven Lbr. Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 484; Revel v. Pruitt, 42 Okla. 696, 142 P. 1019; Galveston H. S.A. Railroad Co. v. Jackson, 31 Tex. Civ. App. 342, 71 S.W. 991; Schaff v. Sanders (Tex. Civ. App.), 257 S.W. 677; Kuchenmeister v. Los Angeles S.L. Railroad Co., 52 Utah, 116, 172 P. 725; Daly v. Pulp Paper Co., 31 Wn. 252, 71 P. 1014; Donald v. Ballard, 34 Wn. 576, 76 P. 80; Hammer v. Caine, 47 Wn. 672, 92 P. 441; Harris v. Elec. Ry. Co., 52 Wn. 298, 100 P. 841; State to Use of Hempstead v. Coste, 36 Mo. 437. (2) The court committed error in refusing to sustain and in overruling the demurrer of defendant at the close of all the evidence, for the reason that on the face of the record, the plaintiff's cause of action was barred by the five-year statute of limitations.
The evidence was sufficient to justify the submission of the question to the jury, her earning capacity and the degree to which the same might be lessened by her injuries being presumably within the knowledge or observation of the jury as persons of ordinary intelligence and experience ( Storrs v. Los Angeles Traction Co., supra; Gotsch v. Market St. Ry., supra). [12] While the earnings of the minor during minority belonged to her parents equally (Civ. Code, sec. 197), here her father, having brought the action as her guardian ad litem claiming such loss on her behalf, would be estopped from attempting to recover the same in an action brought on his own behalf ( Moline Timber Co. v. Taylor, 144 Ark. 317 [222 S.W. 371]; Morris v. Kasling, 79 Tex. 141 [15 S.W. 226]; Kenure v. Brainerd etc. Co., 88 Conn. 265 [ 91 A. 185]; Baker v. Flint etc. R.R. Co., 91 Mich. 298 [30 Am. St. Rep. 471, 16 L.R.A. 154, 51 N.W. 897]; Louisville Ry. Co. v. Esselman (Ky.), 93 S.W. 50; Revel v. Pruitt, 42 Okl. 696 [ 142 P. 1019]; Abeles v. Bransfield, 19 Kan. 16; American Car Foundry Co. v. Hill, 226 Ill. 227 [80 N.E. 784]). [13] As to the interest of the mother therein it is not contended that any action has been brought by her to recover for any loss in this respect.
(20 C.J. 3; Ireland v. Waymire, 107 Kan. 384, 191 P. 304; Norcross v. Cunningham, 54 Colo. 517, 131 P. 428; In re Smith's Estate, 60 Mont. 276, 199 P. 696; Brisley v. Mahaffey, 87 Okla. 257, 209 P. 920; O'Meara v. McDermott, 43 Mont. 189, 115 P. 912; Revel v. Pruitt, 42 Okla. 696, 142 P. 1019.)
" In the case of Revel v. Pruitt, 42 Okla. 696, 142 P. 1019, it is said: "It is a well-established principle of pleading that there need be no direct allegation of a fact if the same otherwise sufficiently appears, or of a fact which is necessarily implied from other averments in the petition."
"It is a well-established principle of pleading that there need be no direct allegation of a fact if the same otherwise sufficiently appears, or of a fact which is necessarily implied from other averments in the petition." Revel v. Pruitt, 42 Okla. 696, 142 P. 1019. "Defendant's demurrer to plaintiff's petition, and defendants' objection to the introduction of evidence by plaintiff in support of his petition on the ground that the petition does not state facts sufficient to authorize a recovery, for the purpose of consideration of such demurrer and objection, admit the truth of the allegations and the logical and rational inferences to be drawn therefrom; and both are properly overruled where the allegations and logical and rational inferences to be drawn therefrom will authorize a recovery."
Ordinarily, a direct allegation of an ultimate fact may be excused when the fact otherwise sufficiently appears or is necessarily implied from other averments in the petition. Revel v. Pruitt, 42 Okla. 696, 142 P. 1019. Thus, although the plaintiff did not in her petition specifically state that the defendant abandoned her, she pleaded the facts from which such abandonment was obviously apparent and necessarily inferred with sufficient clarity to advise court or counsel of the basis of her complaint.
"Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting question of negligence, such question is for the jury." San Bois Coal Co. v. Janeway, 22 Okla. 425; St. Louis S. F. R. Co. v. Williams, 31 Okla. 450, 122 P. 152; Revel et al. v. Pruitt, 42 Okla. 696, 142 P. 1019; St. Louis S. F. R. Co. v. Hart, 45 Okla. 659; 46 P. 436. The defendant's 4th specification of error is:
The evidence being sufficient to establish primary negligence of the defendant, the question of contributory negligence was a question for the jury. Section 6, art. 23, Constitution of Oklahoma; St. Louis S. F. Ry. Co. v. Hart, 45 Okla. 659, 146 P. 436; Revel et al. v. Pruitt, 42 Okla. 696, 152 P. 1019; St. Louis S. F. Ry. Co. v. Long, 41 Okla. 177, 137 P. 1156; St. Louis S. F. Ry. Co. v. Williams, 31 Okla. 450, 122 P. 152; Sweet v. Henderson, 72 Oklahoma, 178 P. 666. It is next urged that the court erred in refusing to give to the jury the defendant's requested instruction No. 4. In our opinion, the court did not err in this regard.
While plaintiff does not plead or claim any damages by reason of the obligation incurred, but does plead and claim damages for medicines and medical services paid for, in the sum of $30, this is not such a variance as would be prejudicial to the defendants, and the refusal to permit said testimony, or the refusal to give such an instruction was error. This court has held in the case of Revel v. Pruitt, 42 Okla. 696, 142 P. 1019: "In a suit for damages on account of personal injuries, it requires an allegation that obligations have been incurred for medical attention, hospital fees, etc., to justfy proof of, or a recovery for, such items, as they are in the nature of special damages."
"Ordinarily, a direct allegation of an ultimate fact may be excused when the fact otherwise sufficiently appears or is necessarily implied from other averments in the petition. Revel v. Pruitt, 42 Okla. 696, 142 P. 1019."