Ada-Konawa Bridge Co. v. Cargo

• Decision Date: 06 December 1932
• Docket Number: 21452.
• Citation: 21 P.2d 1,163 Okla. 122,1932 OK 790
• Parties: ADA-KONAWA BRIDGE CO. v. CARGO.
• Court: Oklahoma Supreme Court

21 P.2d 1

163 Okla. 122, 1932 OK 790

ADA-KONAWA BRIDGE CO. v. CARGO.

No. 21452.

Supreme Court of Oklahoma

December 6, 1932

Rehearing Denied April 18, 1933.

Plaintiff alleged that he was driving automobile across tollbridge that he was shot and received a flesh wound in right arm that the shot was fired by one of the agents, servants, or employees of the bridge company, and that the shot was fired with the willful, wanton, malicious, and negligent intent on part of the servant or employee of the bridge company to injure plaintiff in utter disregard of rights of plaintiff and that plaintiff suffered serious painful and permanent injury.

Generally act is within the "course of employment" if it be something fairly and naturally incident to the business, and if it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill advisedly, with a view to further master's interests, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act on his own account.

Syllabus by the Court.

1. Where defendant is served with a summons in a civil action pending in a county other than that of his residence, and denies the jurisdiction of the court over his person, he must present that question for determination at as early a stage in the proceedings as is possible by proper motion, pleading, or answer, and if he proceeds to the trial of the case and does not in apt time present this single question until the conclusion of the evidence, we are of the opinion that such presentation of this jurisdictional question over his person is not timely, and that said defendant will be regarded as having waived this statutory right or privilege and to have submitted himself to the jurisdiction of the court. See Wells v. Patton, 50 Kan. 732, 33 P. 15; Bates, Pleading, Practice and Forms (4th Ed.) § 554a; First Nat. Bank of Emporia v. Geneseo Town Co., 51 Kan. 215, 32 P. 902; Iles v. Heidenreich, 271 Ill. 485, 111 N.E. 524.

2. Where an action is brought in a county other than that in which the defendant, or some one of the defendants, resides, or may be summoned, and the court in which the action was brought has a general jurisdiction in that class of cases, the defendant, if he appears therein, must timely plead or answer to the jurisdiction of the court over his person to take advantage of the irregularity or abuse of legal process on him in the court where said action is brought, and the filing of a special appearance and motion to quash on the sole ground that the summons and purported service thereof was not issued, served, and returned according to law and is insufficient to confer jurisdiction on the court, and without specifically raising therein the question of venue or the specific jurisdictional question over his person by reason of the summons not being rightfully issued from the county in which the action is pending to the county of his residence, is not sufficient.

3. "Obligation of trustees, as said in the English case In re Frith, 1 Ch. D. 342, is such that 'the creditor is entitled to sue all three or any two or any of them' there being three trustees of that trust. * * *" Sears on Trust Estates (2d Ed.) p. 203.

4. "Says Mr. Mechem, in his work on Agency: 'It is obvious, too, that there are many cases where, from the very nature of the duty, or the circumstances under which it is to be performed, the employment of subagents is imperatively necessary, and that the principal's interest will suffer if they are not so employed. In such cases the power to employ the necessary subagents will be implied. The authority of an agent is always construed to include the necessary and usual means to execute it properly."' Fritz v. Western Union Tel. Co., 25 Utah, 263, 71 P. 209.

5. "If an exigency exists or arises making it necessary for the proper carrying out of the master's business that a subagent should be employed, then the authority so to do will be implied. Mickelson v. Railway Co., 23 Utah, 42, 64 P. 463; Underwood v. Birdsell 9 P. 922." Fritz v. Western Union Tel. Co., supra.

6. "It is competent for the court to treat pleadings as amended upon an issue which has been fully tried out, where it cannot work substantial prejudice to any of the parties to the action * * *." Burgner-Bowman Lumber Co. v. McCord-Kistler Mercantile Co., 114 Kan. 10, 216 P. 815, 35 A. L. R. 242.

7. "The general rule is that a master or principal is liable for the tortious acts of his servant or agent where such acts are incidental to and one in furtherance of the business of the master or principal, and this is true, although the servant or agent acted in excess of the authority conferred upon him, or willfully or maliciously committed the wrongs." Mansfield v. Wm. J. Burns Detective Agency, 102 Kan. 687, 171 P. 625, L. R. A. 1918D, 571.

8. "In general terms it may be said that an act is within the 'course of employment' if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master's business and be done, although mistakenly or illadvisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account." Mechem on Agency, § 1960.

9. Record examined; held, judgment of the trial court is affirmed.

Appeal from District Court, Pontotoc County; Orel Busby, Judge.

Action by J. E. Cargo against the McKeown Bridge Company, in which the plaintiff was permitted to substitute the Ada-Konawa Bridge Company, an express trust, as defendant. Judgment for plaintiff, and defendant appeals.

Affirmed.

Rehearing denied; BUSBY, J., disqualified and not participating.

CLARK, V. C.J., HEFNER, J., LESTER, C.J., and KORNEGAY, J., dissenting.

Wm. L. McCann and Albert D. Lynn, both of Oklahoma City, for plaintiff in error.

George Trice, Denver N. Davison, and John Blanford, all of Ada, for defendant in error.

McNEILL J.

This action was filed in the district court of Pontotoc county, to recover damages for personal injuries. The parties will be referred to as they appeared in the trial court.

The plaintiff alleged that he was driving an automobile from his home in Seminole county to Ardmore; that while crossing the tollbridge across the Canadian river north of Ada, Okl., he was shot and received a flesh wound in the right arm above the elbow; that the shot was fired by one of the agents, servants, or employees of the defendant; and that said shot was fired with the willful, wanton, malicious, and negligent intent upon the part of said servant or employee of said defendant to strike, injure, and wound the plaintiff in utter disregard of the rights of plaintiff and that the plaintiff suffered serious painful and permanent injury. Plaintiff prayed for a judgment against the defendant company for the sum of $5,250, actual damages.

It appears that the petition named "McKeown Bridge Company, a Corporation," as defendant. A præcipe for summons was duly filed and summons issued to the sheriff of Oklahoma county, Okl., to serve said defendant company. The summons was served upon Geo. D. Key, as service agent. Thereafter on July 11, 1928, a special appearance and motion to quash said summons and return was filed. While this special appearance and motion to quash was pending, plaintiff, on September 26, 1928, filed a motion to substitute "Ada-Konawa Bridge Company" as defendant in the action. The court sustained said motion and directed that said bridge company, a common-law trust, be substituted as defendant in said action and directed that summons issue to the substituted defendant as the law directs. Subsequently the præcipe for summons was filed directing the clerk to issue summons to the sheriff of Oklahoma county, state of Oklahoma, "to serve in his county on Ada-Konawa Bridge Company (Serve Geo. D. Key) defendant in said cause." On October 24, 1928, summons was issued to the sheriff of said Oklahoma county "to notify Ada-Konawa Bridge Company (serve Geo. D. Key), etc." The sheriff's return is as follows:

"Received this writ Oct. 26th, 1928, at ------ o'clock ------ M., and served the same upon the following person defendant, within named, at the times following, to wit:

Ada-Konawa Bridge Company, by delivering a true copy to Geo. D. Key, in person, he being service agent for the above named Ada-Konawa Bridge Company, Oct. 26th, 1928, by delivering to said defendants, personally, in said county, a true and certified copy of the within summons with all the endorsements thereon."

"[Signed] Ben B. Dancy, Sheriff,

By [Signed] M. O. Baggerle, Deputy."

On November 26, 1928, the defendant filed a special appearance and motion to quash said summons; said motion being as follows (omitting caption):

"Special Appearance and Motion to Quash Summons and Return:

Comes now Ada-Konawa Bridge Company, an express trust, appearing specially and for the purpose of this motion only, and moves the court to quash, set aside, and hold for naught the purported summons and purported service thereof, in the above entitled cause, for the reason that the same was not issued, served and returned according to law, and is insufficient to confer jurisdiction on this court.

The copy of said purported summons delivered by George D. Key at Oklahoma City, Oklahoma, by the deputy sheriff of Oklahoma County, Oklahoma, is hereto attached,...