Apache Gas Co. v. Thompson

• Decision Date: 06 October 1936
• Docket Number: Case Number: 24601
• Citation: 177 Okla. 594,1936 OK 567,61 P.2d 567
• Parties: APACHE GAS CO. v. THOMPSON
• Court: Oklahoma Supreme Court

1936 OK 567

61 P.2d 567

177 Okla. 594

APACHE GAS CO. v. THOMPSON

Case Number: 24601

Supreme Court of Oklahoma

Decided: October 6, 1936

Syllabus

¶0 1. MASTER AND SERVANT - Action ex Delicto Against Master and Certain Named Servants - Validity of Verdict and Judgment Against Master Alone.

In an action ex delicto against a master and certain named servants, verdict and judgment in favor of the servants held not inconsistent with a verdict and judgment against the master where, under the proof, the liability of the master did not arise solely by reason of alleged negligence of the servants released by the judgment.

2. NEGLIGENCE - Condition Existing Near Sidewalk Dangerous for Pedestrians.

A dangerous condition created or permitted to exist near a sidewalk used by pedestrians may be actionable.

3. TRIAL - Requested Instruction on Untenable Legal Theory Properly Refused.

A trial court is not required to submit to the jury instructions upon an untenable legal theory presented by one of the parties.

Appeal from District Court, Logan County; Freeman E. Miller, Judge.

Action ex delicto for damages for personal injuries by Daisy Thompson against the Apache Gas Company, master, and W.P. Matthews and others, servants. Verdict and judgment against the master and in favor of the servants, and the former appeals. Affirmed.

Thos. H. Owen and Paul N. Lindsey, for plaintiff in error.

W.W. Sutton, for defendant in error.

BUSBY, J.

¶1 On the dark and misty evening of December 14, 1931, Mrs. Daisy Thompson, accompanied by her husband, her small daughter and a friend, Mrs. Hazel Straughn, was walking along or very near the portion of a street in the town of Marshall, Okla., reserved for pedestrians, when she stepped into an open ditch about two feet wide and some 20 inches deep which had been dug that day by the Apache Gas Company, a corporation, and left unbarricaded and without warning signals. As a result the fibula bone of her right leg was fractured near the knee and she was otherwise severely injured.

¶2 There was a cement sidewalk running along the street upon which the plaintiff was walking immediately prior to the injury, but at the point where the injury occurred there was a gap in the sidewalk some 14 or 15 feet long where the sidewalk proper did not exist. In this gap a number of stones had been placed which created a kind of improvised walk which was some 20 inches narrower than the cement walk at each end of the gap.

¶3 It was the purpose of the Apache Gas Company to dig its ditch so that it intersected the walk at the point where the gap occurred at or near one of the ends of the gap.

¶4 There is a dispute in the evidence as to how far the men working for the gas company had progressed when they quit work on the evening of December 14th. According to the testimony produced by Mrs. Thompson, the ditch had been dug to a point where it extended partly across the space where the sidewalk would have been if the gap had not been there. The witnesses for the Apache Gas Company, on the other hand, testified that the ditch stopped a few inches on each side of the "sidewalk line" - to be more specific about twelve inches on one side and about 18 inches on the other. They testified that no part of the intervening space between the two ends of the cement sidewalk had been invaded by the ditch at the time Mrs. Thompson was injured. It was undisputed, however, that the ditch was left unbarricaded and no warning signals had been placed.

¶5 The employees of the gas company who did the actual work in digging the ditch were Gene Taylor, W.P. Matthews, George Payton, and Floyd Clauch and a few others whose names it is not necessary to mention. These laborers were being supervised in the work by one C.C. Adams. It appears that all of these employees of the gas company quit work at 5 o'clock on the evening of December 14th, leaving the ditch in the condition heretofore described.

¶6 On the 23rd day of April, 1932, Mrs. Thompson commenced this action in the district court of Logan county seeking to recover $50,000 in damages from the Apache Gas Company, a corporation, W.P. Matthews, George Payton, Floyd Clauch, and Gene Taylor. The boss or supervisor, C.C. Adams, was not named as a party defendant.

¶7 In brief, the plaintiff relied for recovery upon the alleged negligence of the defendants in digging the ditch at the place where it was dug, and their further and additional alleged negligence in failing to cover or barricade the ditch or place warning signals in close proximity thereto so that pedestrians would not be injured. The case was tried to a jury in the lower court. It developed from the evidence that the defendant Gene Taylor had nothing to do with the digging of the ditch at or near the point of injury and he was eliminated by the trial court. As to the remainder of the defendants the case was submitted to the jury, which returned a verdict in favor of Mrs. Thompson for the sum of $7,500 as against the Apache Gas Company, and also at the same time returned a companion verdict absolving the workmen, W.P. Matthews, George Payton, and Floyd Clauch, from responsibility. Judgment was entered in accordance with each of these verdicts, and the Apache Gas Company brings the case to this court on appeal complaining of the judgment entered against it.

¶8 It is first contended that the verdict and judgment thereon exonerating the workmen or servants of the gas company necessarily released the gas company itself.

¶9 This being an action for personal injuries based upon tort involving in part, at least, alleged negligence on the part of the servants, the plaintiff was authorized at her option to sue one or all or any of those alleged to be responsible. She chose to sue the Apache Gas Company and some of its employees. She did not, however, include the boss or supervisor, C.C. Adams.

¶10 It is generally true, as a matter of law, that when the liability of a master or principal arises solely and exclusively by reason of the alleged negligence of a servant under the doctrine of respondeat superior and both are proceeded against in the same action, and the jury, upon consideration of the same evidence, returns one verdict against the master and another verdict absolving the servant from liability, the two verdicts are inconsistent and self-contradictory and both cannot be sustained. There is perhaps no logical reason why either of the contradictory verdicts in such cases should be given controlling weight or should govern over the other, if proper and timely objection is made to each by the party adversely affected thereby, assuming, of course, in this connection, that the case is tried upon conflicting evidence which would support either. There is no more reason to assume that a jury erroneously disregarded the facts as determined by them and returned a verdict against the principal through prejudice than there is to assume that such ascertained facts were ignored and an erroneous verdict entered in favor of the servant through sympathy.

¶11 However, in this class of cases, where the plaintiff has failed to object to the receipt of the verdict or complain of the entry of judgment thereon and has failed upon appeal to file a cross-petition in error, this court has always held that the judgment based upon the verdict against the principal cannot stand. See Consolidated Gas Utilities Co. v. Beatie, 167 Okla. 71, 27 P.2d 813; C., R.I. & P. Ry. Co. v. Austin, 43 Okla. 698, 144 P. 1069; St. L. & S. F. R. Co. v. Dancey, 74 Okla. 6, 176 P. 209. See, generally, notes L. R. A. 1917E, 1029; 9 L. R. A. (N. S.) 880; 30 L. R. A. (N. S.) 404; 78 A. L. R. 365.

¶12 The rule, however, is confined strictly in its application to cases where the sole and only responsibility of the master is under the doctrine of respondeat superior, and by reason of the exclusive negligence of the servant who has been exonerated by the jury. It does not, for instance, apply to cases involving the nonperformance of a non-delegable duty of the master....