Boling v. Asbridge

• Court: Oklahoma Supreme Court
• Writing for the Court: KANE, J.
• Citation: Boling v. Asbridge, 203 P. 894, 84 Okla. 280, 1921 OK 432 (Okla. 1921)
• Decision Date: 13 December 1921
• Docket Number: 12306.
• Parties: BOLING v. ASBRIDGE.

203 P. 894

84 Okla. 280, 1921 OK 432

BOLING v. ASBRIDGE.

No. 12306.

Supreme Court of Oklahoma

December 13, 1921

Rehearing Denied Jan. 24, 1922.

Syllabus by the Court.

When the plaintiff in an action seeks to charge the owner of an automobile with liabilty for an injury inflicted by the car while it was being operated by another, the burden is on the plaintiff not only to show that his injury was the proximate result of the negligence of the operator, but also that such person was the servant or agent of the defendant, and was at the time of such negligence acting within the scope of his employment.

When the plaintiff has suffered injury from the negligent management of an automobile, it is sufficient prima facie evidence that the negligence was imputable to the defendant to show that he was the owner of the car without proving affirmatively that the person in charge was the defendant's servant.

It is not essential that the agency established should be a business agency or the service a remunerative service.

When the proofs of damage are submitted to a jury under proper instructions, in a suit for personal injuries, and the verdict not being so excessive as to raise the presumption that the jury was actuated in rendering such verdict by passion or prejudice, and there being no specific proofs otherwise showing that the jury was so actuated, and the trial judge fails to act and enter judgment on the verdict held, this court will not interfere with the verdict of the jury by ordering a remittitur.

Record examined, and held: (1) That the action of the trial court in ruling upon defendant's motion for leave to file a verified answer out of time was not reversible error; (2) that the evidence reasonably supports the verdict of the jury and the judgment rendered thereon; (3) that the instructions given stated the law with reasonable fullness and substantial accuracy; (4) that the verdict, while liberal, was not excessive in amount.

Appeal from District Court, Tulsa County; A. C. Brewster, Judge.

Action by Julia E. Asbridge, as surviving widow of W. C. Asbridge deceased, against Dottie Boling, the Tulsa Auto Livery Company and J. R. Boling. Judgment rendered against Dottie Boling, and action dismissed as to other defendants, and from such judgment, Dottie Boling appeals. Affirmed.

Davidson & Williams, of Tulsa, for plaintiff in error.

McGee & Bennett, of Salem, Mo., and Robinett & Ford, of Tulsa, for defendant in error.

KANE J.

This was an action for damages for personal injuries resulting in death, commenced by the defendant in error, Julia E. Asbridge in her own behalf, as the surviving widow of W. C. Asbridge deceased, and in behalf of their children, against the plaintiff in error, the Tulsa Auto Livery Company, a corporation, and J. R. Boling, as defendants. Subsequent to the filing of the petition the cause was dismissed as to the Tulsa Auto Livery Company and J. R. Boling, and thereafter proceeded to trial and judgment against Dottie R. Boling, as sole defendant. W. C. Asbridge was killed by being run down by an automobile belonging to the defendant Dottie R. Boling while being driven by one Temple Holder upon one of the principal streets of the city of Tulsa.

The petition, which charged negligence in violating certain city traffic ordinances, was in the usual form in such cases and admittedly stated a cause of action. The answer was (1) a general denial and (2) contributory negligence. The reply was a general denial of each and every material allegation of new matter set up in the answer.

Upon trial to a jury there was a verdict in favor of the plaintiff in the sum of $20,000, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

Counsel for defendant summarize their grounds for reversal substantially as follows:

(1) Error of the court on the theory that it was admitted by the pleadings that Temple Holder was the servant, agent, and employee of Dottie R. Boling.

(2) The demurrer of Dottie R. Boling to the evidence introduced on behalf of the plaintiff should have been sustained.

(3) Error of the court in giving certain instructions.

The first assignment of error is based upon the following circumstances: The answer of the defendant was not verified. During the opening statement of counsel for the defendant he stated that the evidence would show that the man who was driving the car at the time of the accident had taken it without the knowledge of the defendant and was using it in a manner wholly disconnected from and for a matter in which the defendant had no interest or concern. At this point counsel for the plaintiff suggested that the unverified answer did not put in issue the allegation of agency contained in the petition. Thereupon counsel for defendant asked leave to verify the answer. After the court announced that he was not quite ready to pass on the question thus raised, the cause proceeded until the close of plaintiff's evidence, whereupon the motion for leave to verify was overruled. Thereupon counsel for defendant asked leave to file an amended answer, to which the court answered:

"You can file it as a matter of record, but as an answer in this case I think it comes too late."

Thereupon the motion was filed, and the cause proceeded without further action thereon. At the close of plaintiff's case in chief the defendant filed a demurrer to the evidence, which was overruled. The defendant then introduced her evidence and rested. After the close of all the evidence the court made the following announcement:

"Let the record show at this point that the amended answer offered to be filed by the defendant in this case will now be permitted to be filed as requested by the defendant, and the court will hold in this case the burden of proof is upon the plaintiff to establish the question as to whether the driver in this case had any authority or had authority to drive this car."

While this action upon defendant's motion was somewhat dilatory, we are unable to perceive how she suffered any harm from the delay in ruling. The purpose of the defendant in asking leave to amend by verifying his answer was to cast the burden upon the plaintiff of showing that Holder had authority to drive the car. While the court was rather deliberate in ruling upon these questions, he finally did so in favor of the defendant. As in the meantime the cause proceeded in all respects as though the answer had been verified from the start, it is from this standpoint we will view the record in examining the remaining assignments of error.

In presenting the second assignment of error counsel do not seem to disagree upon the general principle that, when the plaintiff in an action seeks to charge the owner of an automobile with liability for an injury inflicted by the car while it was being operated by another, the burden is on the plaintiff not only to show that his injury was the proximate result of the negligence of the operator, but also that such person was the servant or agent of the defendant, and was at the time of such negligence acting within the scope of his employment. Berry on Automobiles, 683; Patterson v. Milligan, 12 Ala. App. 324, 66 So. 914.

The question they differ...