Norton v. Harmon

• Decision Date: 24 November 1942
• Docket Number: Case Number: 29584
• Citation: 133 P.2d 206,1942 OK 391,192 Okla. 36
• Parties: NORTON et al. v. HARMON
• Court: Oklahoma Supreme Court

1942 OK 391

133 P.2d 206

192 Okla. 36

NORTON et al. v. HARMON

Case Number: 29584

Supreme Court of Oklahoma

Decided: November 24, 1942

Syllabus

¶0 1. AUTOMOBILES - Use of dealer's license plates on car driven by dealer's agent raised presumption car was owned by dealer and driver was engaged upon dealer's business.

The use of dealer's license plates upon an automobile being operated upon a public highway by an agent of a motor sales company raised a presumption that the automobile was owned by said sales company and that the agent was engaged upon the company's business, it being presumed that both the company and the agent would obey the law.

2. PRINCIPAL AND AGENT - Proof of agency -When declarations of alleged agent admissible.

While it is the general rule that declarations of an agent made to a third person in the absence of the alleged principal are inadmissible in evidence for the purpose of establishing agency, notwithstanding the rule, it has many well-established exceptions; one of the well-recognized exceptions to the rule is that, when the agency is otherwise established by competent testimony, such declarations become admissible in corroboration and as part of the res gestae where made at the time of the transaction in question.

3. AUTOMOBILES - Action for injuries received when plaintiff's car crashed into rear of defendant's car - Question whether defendant was negligent in suddenly stopping his car without warning properly submitted to jury.

Plaintiff sustained personal injuries in a collision between two motor vehicles being operated upon a public highway. Both vehicles were traveling in the same direction and defendant was operating the forward vehicle. Plaintiff charged that defendant was negligent in stopping the vehicle in which he was riding suddenly and without warning. Held, that reasonable minds might differ as to whether due care was exercised under the circumstances, and the question of defendant's negligence was properly submitted to the jury.

4. NEGLIGENCE - TRIAL - Error in instruction in personal injury case placing burden on defendant to show contriburden on defendant to show contributory negligence held cured by another instruction.

An instruction in a personal injury case which states that the burden is upon the defendant to show that the contributory negligence relied upon was the proximate cause of the injury is inaccurate, but the error therein is cured by a proper definition of contributory negligence and an instruction wherein it is stated: " . . . if you believe from the evidence in this case that the plaintiff was guilty of any negligence which helped to bring about her injury, then you cannot find for the plaintiff, although you believe the defendant, or one of them, was also guilty of negligence."

Appeal from District Court, Hughes County; Bob Howell, Judge.

Action by Ida B. Harmon against H. Meade Norton and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Clayton B. Pierce and Truman B. Rucker, both of Oklahoma City, for plaintiffs in error.

Anglin & Stevenson and O. S. Huser, all of Holdenville, for defendant in error.

OSBORN, J.

¶1 Ida B. Harmon, hereinafter referred to as plaintiff, instituted this action in the district court of Hughes county against H. Meade Norton and the Norton Motor Sales Company, a corporation, to recover damages for personal injuries. It was alleged that said injuries resulted from the negligence of Norton, and the corporate defendant was alleged to be liable upon the principle of respondeat superior. Issues were joined, the cause was tried to a jury, and a verdict was returned in favor of plaintiff as against both defendants. From a judgment on the verdict, defendants have appealed.

¶2 Plaintiff alleged that on November 29, 1938, she was driving an automobile on U. S. Highway No. 270 in a westerly direction at a point about two and one-half miles northeast of Holdenville, Okla.; that defendant Norton was driving a Packard sedan automobile owned by defendant Norton Motor Sales Company along said highway in the same direction that plaintiff was traveling; that plaintiff was proceeding along the highway immediately behind the automobile operated by said defendant when suddenly and without warning defendant brought the Packard sedan automobile to an immediate stop and as a result the automobile of plaintiff crashed into the rear of said automobile operated by defendant, and as a result thereof plaintiff sustained numerous physical injuries, which will not be enumerated here.

¶3 As its first proposition for reversal of the cause defendants have challenged the jurisdiction of the district court of Hughes county. The record discloses that both Norton and the corporate defendant were residents of Pottawatomie county and both were served with summons in that county. By virtue of 12 O. S. 1941 § 134 (112, O.S. 1931) the district court of Hughes county had jurisdiction of the corporate defendant if a cause of action was established against said defendant, any part of which arose in that county. It appears to be well established that in order for said court to acquire jurisdiction over the joint defendants, it was necessary to establish a valid joint cause of action against the corporate defendant as well as against Norton, the individual defendant. See Fisher v. Fiske, 96 Okla. 36, 219 P. 683; Miller v. Thompson, 119 Okla. 171, 249 P. 308; Mills v. Daubenheyer, 96 Okla. 36, 222 P. 533; Wilkinson v. Whitworth, 169 Okla. 286, 36 P.2d 932; Oklahoma State Bk. of Ada v. Reed, 121 Okla. 103, 247 P. 402. It is urged as grounds for reversal that no valid cause of action was established as against the corporate defendant, and therefore the cause must be reversed as to both defendants for lack of jurisdiction.

¶4 The record shows that defendant Norton was president of Norton Motor Sales Company, a corporation engaged in the sale of Chevrolet automobiles domiciled in Shawnee, Pottawatomie county; that defendant had made a trip to Holdenville and was returning to Shawnee at the time the collision occurred. There is a sharp conflict in the evidence as to whether or not defendant was, at that time, engaged upon a mission for the company of which he was president or whether he was engaged upon a purely personal mission. Defendant testified, and produced witnesses corroborating his testimony, that he had gone to Holdenville to see a Mr. Maddox, who operated the Maddox Chevrolet Company at Holdenville, for the purpose of negotiating for the purchase of a saddle horse owned by Mr. Maddox; that while in Holdenville he inspected the horse and bought the same from Maddox. He testified that on that date he was not engaged in the transaction of any business in behalf of the corporate defendant. On behalf of plaintiff, evidence was introduced to the effect that at the time of the collision the automobile which was being operated by defendant Norton bore dealers' license plates. Plaintiff testified further that at the scene of the collision and immediately thereafter plaintiff had a conversation with defendant Norton in which he stated that he had been to Holdenville on business for the Norton Motor Sales Company, of which company he was president. Defendants argue that plaintiff's testimony in this respect was inadmissible, and the fact that the automobile operated by defendant bore dealers' license plates was insufficient to establish the fact that defendant was engaged upon a mission of the corporation, in the face of the positive evidence offered by defendant to the contrary.

¶5 In the case of Simmons v. Brooks, 72 F.2d 86, it was sought to establish liability against a company engaged in the sale of automobiles where an automobile operated by a salesman of the company collided with an automobile of the plaintiff. In that case it appeared that the car operated by the salesman bore dealers' license plates and that under the applicable law it was unlawful to operate an automobile upon the highway without registering the same except where the machine was being used by the dealer or his agent for sale purpose. With reference to the weight and value of the evidence relating to the use of the dealers' license plates, the court said:

". . .The fact that the car at the time of the accident was owned by the defendants who were dealers in automobiles and used cars and bore the dealers' license tags issued to them, which they could not lawfully use except upon automobiles held by them for sale or demonstration purposes, was sufficient to raise an inference that Proctor, the driver, was acting as an employee of the company with authority to demonstrate the car for them; and this presumption obtains until overthrown by credible testimony to the contrary. Callas v. Independent Taxi Owners Ass'n, 62 App. D. C. 212, 66 F.2d 192. But if the presumption be overcome by undisputed proof to the contrary, the question becomes one for the court, and not the jury. Curry v. Stevenson, 58 App. D. C. 162, 26 F.2d 534. If, however, the evidence is reasonably subject to contradictory interpretations, the question of liability of the defendants is for the jury. Tischler v. Steinholz, 99 N. J. Law, 149, 152, 122 A. 880."

¶6 A similar set of facts was presented to the Supreme Court of Oregon, in the case of Miller v. Service and Sales, Inc., 149 Ore. 11, 38 P.2d 995, 997, and therein it was said:

"The registration certificate issued to the defendant company under and by virtue of chapter 428, p. 739, Laws of Oregon 1933, authorized 'the use and operation over and along the highways of the state of Oregon of all motor vehicles actually owned or controlled by such dealer and in actual use by him and the members of his firm and/or any salesman thereof who devotes all of his time to the sale of motor vehicles. . .' It is presumed that the defendant company, in the use and operation of its automobiles on the highways of this state, would obey the law. Hence it could reasonably be inferred

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