Berg v. Willibey

• Decision Date: 10 September 1929
• Docket Number: Case Number: 18895
• Citation: 138 Okla. 110,280 P. 456,1929 OK 285
• Parties: BERG v. WILLIBEY et al.
• Court: Oklahoma Supreme Court

1929 OK 285

280 P. 456

138 Okla. 110

BERG v. WILLIBEY et al.

Case Number: 18895

Supreme Court of Oklahoma

Decided: September 10, 1929

Syllabus

¶0 1. Appeal and Error--All Parties of Record Made Parties on Appeal by Giving Notice of Intention to Appeal.

The giving of notice of intention to appeal, as provided in section 782, C. O. S. 1921, automatically makes all parties of record in the court below parties in the appellate court. Mires v. Hogan, 79 Okla. 233, 192 P. 811.

2. Same--Service of Case-Made--"Opposite Party."

The "opposite party," upon whom a case-made, or a copy thereof, is required to be served under section 785, C. O. S. 1921, means all parties who have, an interest in upholding the judgment sought to be reversed. In re Wah-Shah-She-Me-Tsa-He's Estate, 111 Okla. 177, 239 P. 177.

3. Municipal Corporations--Nonliability, of Officers for Innocent Mistakes of Judgment.

The officers of a municipal corporation are not liable for errors or mistakes of judgment in the performance of acts within the scope of their authority as to which they are empowered to exercise judgment and discretion in the manner of their performance, in the absence of malice or corruption or a statutory provision imposing the liability.

4. Same---Counties--Officers not Liable for Negligence of Employees on Public Works.

Public and municipal officers are not individually responsible for the negligence of those whom they are obliged to employ in the discharge of their duties in the execution of public works. Such employees are not their servants, and the rule respondeat superior does not apply to charge them with responsibility for the acts of employees.

Commissioners' Opinion, Division No. 2.

Error from District Court, Creek County; Thos. S. Harris, Judge.

Action by Hester Berg against George R. Willibey, Carlos E. Foster, Wallace Doolin, the Board of County Commissioners of Creek County, and the American Surety Company of New York. Judgment for defendants, and plaintiff appeals. Affirmed.

Glenn O. Young, for plaintiff in error.

Tomerlin & Chandler and Troy Shelton, for defendant in error American Surety Company of New York.

Johnson & Jones, Wayne H. Lasater, and Streeter Speakman, for defendants in error Willibey, Foster and Doolin.

DIFFENDAFFER, C.

¶1 Plaintiff in error, hereinafter referred to as plaintiff, commenced this action, in her own behalf and on behalf of her minor children, in the district court of Creek county, originally against George R. Willibey and the American Surety Company of New York, as surety on the official bond of Willibey as county commissioner of Creek county, to recover damages for the alleged wrongful death of Will Berg.

¶2 The petition was afterwards amended so as to include Carlos E. Foster and Wallace Doolin, the other two members of the board of county commissioners, and still later amended so as to include the board of county commissioners, as such, as parties defendant.

¶3 The amended petition, after formal allegations showing that defendants Willibey, Foster, and Doolin were the duly elected, qualified, and acting county commissioners of Creek county, and that defendant American Surety Company was the surety on the official bond of defendant Willibey, and showing that plaintiff was the widow of Will Berg, deceased, and setting out the names and ages of the minor children, alleged that Will Berg died intestate, and that no administrator or executor of his estate had been appointed. The amended petition then alleged:

"(4) That at the time hereinafter mentioned the defendants George R. Willibey, Carlos E. Foster, and Wallace Doolin were engaged in, and had undertaken as part of their official duties as such commissioners, the laying out, opening, and construction of a public road near Sapulpa in district No. 1, Creek county, Okla.; and that the said Will Berg was employed by, and under the supervision and direction of, the said defendants as a laborer, and in said capacity was engaged in working for the defendants in the execution of said project.

"(5) That in the opening and laying out of said road, the defendants George R. Willibey, Carlos E. Foster, and Wallace Doolin, acting by and through their duly appointed employees and agents, one Mat Shoptaw, and others in lawful authority over the aforesaid Will Berg, carelessly and negligently instructed and directed the said Will Berg to enter and work in an excavation upon said public road; that said excavation was at the time in a dangerous and unsafe condition; that an immense embankment of earth and stone extended over and above the aforesaid Will Berg, which embankment was carelessly and negligently left unsupported, and in such condition that the lives of workmen there under were endangered the defendants George R. Willibey, Carlos E. Foster and Wallace Doolin, county commissioners aforesaid.

"(6) That the defendants George R Willibey, Carlos E. Foster, and Wallace Doolin carelessly and negligently engaged and employed other workmen for the purpose of drilling and preparing to blast away said embankment of earth and stone; that defendants George R. Willibey, Carlos E. Foster, and Wallace Doolin also carelessly and negligently failed to provide competent and trained contractors and supervisors to oversee and direct their employees in the opening and laying out of said roadway; that on the 12th day of November, 1924, while the said Will Berg was engaged in said work as aforesaid, and in the exercise of all due and proper care, and without knowledge of the unsafe condition of said excavation, the aforesaid agents and employees of the defendants George R. Willibey, Carlos E. Foster, and Wallace Doolin, acting under their orders and instructions of their foreman and agents, began digging upon said embankment with shovels, picks, and rock drills for the purpose of loosening the same; that they did loosen said embankment, and caused the same to fall with great force and violence upon him, the said Will Berg, that as a resuit thereof, he received injuries from which he died on November 12, 1924."

¶4 The prayer was for damages in the sum of $ 25,000.

¶5 The amendment to the amended petition by which the board of county commissioners was sought to be charged, after adopting all the allegations of the amended petition, alleged:

"That the defendants George R. Willibey, Carlos E. Foster, and Wallace Doolin were, at the times complained of in plaintiff's amended petition, the duly elected, qualified and acting commissioners of Creek county, state of Oklahoma, and as such constituted the board of county commissioners thereof. Plaintiff further alleges that in all the acts complained of in plaintiff's amended petition, they were the official agents of the county of Creek, state of Oklahoma.

"Wherefore, plaintiff by this amendment includes and designates the board of county commissioners of Creek county, state of Oklahoma, as a defendant herein, and prays that judgment be rendered against the board of county commissioners of the county of Creek, state of Oklahoma, jointly with the defendants named in said amended petition, for the causes, and the amount therein set forth, as fully and to the same extent as though it had originally been named a defendant herein."

¶6 Separate demurrers to the amended petition were filed and overruled prior to the filing of the amendment to the amended petition bringing in the board of county commissioners.

¶7 The board of county commissioners filed no demurrer, but when the cause was called for trial and after the opening statement of plaintiff's counsel, the board of county commissioners, by the county attorney, filed a motion to dismiss in the nature of an objection to the introduction of any evidence, upon the grounds that the amended petition as amended failed to state a cause of action against the board of county commissioners.

¶8 This objection was sustained and the cause dismissed as to the board of county commissioners. To this order no exceptions were saved, and no appeal is taken from this order. Thereupon defendants Willibey, Foster, and Doolin moved to dismiss as to them for the reason:

"That in the petition the plaintiff alleges that all of the acts of the defendants complained of were done in their official capacity, and therefor acting as agent for the county, and for that reason they are not liable as individuals."

¶9 Defendant surety company then objected to the introduction of any evidence upon the grounds:

"That the plaintiff's amended petition as amended does not state facts sufficient in law, if proven, to warrant recovery against the defendant American Surety Company."

¶10 The motions and objections were sustained and the cause dismissed.

¶11 Plaintiff filed a motion for new trial, which was overruled. From the order dismissing as to defendants Willibey, Foster, and Doolin, and the American Surety Company, and the order overruling her motion for new trial, plaintiff brings this appeal.

¶12 Defendants first present a motion to dismiss the appeal upon the grounds that the board of county commissioners of Creek county is not made a party to the appeal; that no notice of appeal was given as to it; no motion for new trial as to such defendant was filed, and no case-made was served upon it.

¶13 In support of the motion to dismiss, defendants cite a number of cases from this court, including Komalty v. Cassidy-Southwest Commission Co., 62 Okla. 81, 161 P. 1061; Houghton et al. v. Sealy et al., 129 Okla. 168, 264 P. 140. These cases hold, in effect, that:

"If a party in the trial court can, by a reversal or modification of the judgment appealed from, be, in any way, affected, he is a necessary party to the appeal; and, in case such person is not made a party in the appellate court, the appeal should be dismissed.

¶14 It has been held, however, that where a party gives notice in open court of intention to appeal, and causes such notice to be entered upon the trial docket, all the parties who had appeared are thereby...