Where the trial court in stating the issues to the jury quotes extensively from the pleadings and substantially states the issues, and opportunity is given counsel to inspect the instructions prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved. St. Louis-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835; St. Louis-S. P. Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866. 3. Trial — Refusal of Requested Instructions Which Require Modification.
Similar testimony has been considered and passed upon by this Court before. In the case of St. Louis-San Francisco Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835, which was also a personal injury action, plaintiff was permitted, over the objection of defendant, to introduce evidence showing that plaintiff was married and had six children. We held that a verdict for plaintiff would not be set aside on account thereof, where it clearly appears that the evidence of plaintiff's injuries was such that the verdict was not excessive.
"Where the pleadings are voluminous and involved and the court does not state the issues in its instructions to the jury, it is reversible error to submit the pleadings to the jury for them to determine what the issues are." On the other hand, counsel for the plaintiff call attention to the cases of St. Louis-San Francisco Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835, and St. Louis-San Francisco Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866, to which this court expressly declined to apply the above-quoted rule. Our decisions in the latter cases are in accord with the general rule that a judgment will not be reversed on account of the giving of erroneous instructions, where the party complaining of such errors failed to request correct instructions and it does not appear that his rights have been prejudiced thereby.
"Before a cause will be reversed on account of the admission of incompetent evidence, it must affirmatively appear that the admission of such evidence resulted prejudicially to the interests of the one making such objection." In St. L.-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835, this court held in the fifth paragraph of the syllabus thereof: "Where plaintiff, in an action for damages for personal injuries, is permitted, over the objection of defendant, to introduce evidence showing that plaintiff is married and has a family, a verdict for plaintiff will not be set aside on account thereof, where it clearly appears that the evidence of plaintiff's injuries is such that the verdict is not excessive."
Counsel owe a duty to the court as well as their clients. If the trial court, by inadvertence, fails to include one or more proper issues in his statement to the jury, it is the duty of counsel to call the attention of the court thereto, either by a request for a more definite statement, pointing out the alleged deficiency, or by offer of a proper instruction. St. L. S. F. v. Routh, 133 Okla. 168, 271 P. 835; Gourley v. Jackson, 142 Okla. 74, 285 P. 84. The fifth assignment is based upon the refusal of the court to give the whole of an instruction offered by defendant.
The defense, aside from the general denial, was that plaintiff was guilty of contributory negligence, and the instruction so stated. This, we think, was probably sufficient, but if the defendants were not satisfied, they should have presented an instruction more fully stating their defenses. St. Louis-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835. The defendants next complain of that part of instruction No 3 wherein it says there are "three essential elements necessary for the plaintiff to recover for negligence and injury in this case"; and then named them as set out in many opinions by this court.
However, in the instant case, the defendants offered no instruction defining the issues, and therefore cannot complain of the manner in which the same were stated. St. L.-S. F. Ry Co. v. Routh, 133 Okla. 168, 271 P. 835; Schmucker v. Clifton, 62 Okla. 249, 162 P. 1094. We might add that we do not believe from an examination of the instructions and of the statement of the court with reference to the issues, that the defendant suffered any prejudice which would warrant a new trial under the facts in this case.
The statement of the issues as raised by pleadings of the respective parties as set out in the instructions was more extensive than necessary under the evidence, and should have been more concise. However, in the recent case of St. Louis-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835, a somewhat similar contention to the one here presented was therein made, and the same cases were relied upon, their application to the question was discussed, and the following rule was announced in that case. "Where the trial court, in stating the issues to the jury, quotes extensively from the pleadings, and, substantially, though not accurately, states the issues, and opportunity is given counsel to inspect the instructions prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved."
"Where the trial court, in stating the issues to the jury, quotes extensively from the pleadings, and substantially, though not accurately, states the issues, and opportunity is given counsel to inspect the instructions prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved." St. Louis-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835. We do not think the jury was misled, or that it misunderstood the issues and contention of the respective parties by reason of the court's statement of the issues to them, or that defendant was prejudiced thereby, nor do we think the statement of plaintiff's claims by the trial court showed a material change of theory from the former trial.