Bolon v. Smith
| Decision Date | 29 January 1935 |
| Docket Number | Case Number: 23647 |
| Citation | 1935 OK 58,170 Okla. 407,40 P.2d 677 |
| Parties | BOLON v. SMITH. |
| Court | Oklahoma Supreme Court |
¶0 APPEAL AND ERROR--Review--Insufficiency of Evidence--Waiver of Demurrer to Evidence and Failure to Ask Directed Verdict.
If a defendant, after its demurrer to the evidence of the plaintiff has been overruled, does not stand upon the demurrer but puts in its evidence, it waives the demurrer, and if it does not move for a directed verdict after the parties have finally rested, it cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiff. (Marland Refining Co. v. Harrel, 167 Okla. 548, 31 P.2d 121.)
Appeal from District Court, Beckham County; T. P. Clay, Judge.
Action by J. B. Smith against Park Bolon for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.
Jones & Wesner, of Cordell, for plaintiff in error.
T. R. Wise, of Sayre, for defendant in error.
¶1 This action was instituted in the district court of Beckham county by J. B. Smith against Park Bolon, being for personal injuries alleged to have been sustained by plaintiff when he was struck by a truck owned and operated by defendant. Judgment being rendered for plaintiff, and defendant prosecuting this appeal, the parties will be referred to as they appeared in the court below.
¶2 The evidence of the plaintiff discloses that he was walking along the highway at its extreme right side, about one mile East of the town of Carter, Okl.; that defendant's truck, or some braces extending out from it, struck him and knocked him off into the ditch at the side of the road. It clearly appears from the record that plaintiff was injured, and the amount of the judgment is not attacked. Defendant's defense is based solely on the claim that it was not a truck of defendant's that injured plaintiff. On this point, the evidence is conflicting, being largely circumstantial. We do not deem it necessary, however, to consider the weight of the evidence for the reason that the record discloses that defendant demurred at the conclusion of plaintiff's evidence, upon which demurrer being overruled defendant put on its evidence, at the conclusion of which, after instructions by the court, the cause was submitted to the jury. The defendant did not at the conclusion of all the evidence renew his demurrer, or move for an instructed verdict. This precludes any inquiry on our part into the weight of the evidence, or its sufficiency to sustain the verdict of the jury.
¶3 This court, in the recent case of Marland Refining Company v. Harrel, 167 Okl. 548, 31 P. (2d) 121, 122, in the first...
To continue reading
Request your trial
-
Good Samaritan Life Ass'n v. Smith
... ... Company v. Harrel, 167 Okl. 548, 31 P.2d 121; Long ... v. Higgins, 169 Okl. 27, 34 P.2d 589; Conner v ... Fisher, 169 Okl. 197, 36 P.2d 501; ... [54 P.2d 653.] Enid Transfer & Storage Company v. Fisher, 169 ... Okl. 484, 37 P.2d 825; Bolon v. Smith, 170 Okl. 407, ... 40 P.2d 677 ... What ... has been said in regard to the sufficiency of the evidence to ... support the judgment of the trial court applies both to ... defendant's first assignment of error and second ... assignment of error. For the reasons above ... ...
-
Oklahoma City-Ada-Atoka Ry. Co. v. Nickels
...a demurrer to the evidence. J. R. Watkins Co. v. Palmer, 193 Okl. 684, 146 P.2d 843. * * *' The same rule is announced in Bolon v. Smith, 170 Okl. 407, 40 P.2d 677; Marland Refining Co. v. Harrel, 167 Okl. 548, 31 P.2d 121, and numerous other cases. We conclude that the defendant was not pr......
-
Richardson v. Shaw, 37471
...the question of the insufficiency of the evidence, after it was all in, and before submission of the cause to the jury. See Bolon v. Smith, 170 Okl. 407, 40 P.2d 677, and Howlett v. Mayo's Inc., 186 Okl. 651, 100 P.2d 263. Nor can we review the sufficiency of the evidence for submission to ......
-
Good Samaritan Life Ass'n v. Smith, Case Number: 25241
... ... v. Harrel, 167 Okla. 548, 31 P.2d 121; Long v. Higgin, 169 Okla. 27, 34 P.2d 589; Conner v. Fisher, 169 Okla. 197, 36 P.2d 501; Enid Transfer & Storage Co. v. Fisher, 169 Okla. 484, 37 P.2d 825; Bolon v. Smith, 170 Okla. 407, 40 P.2d 677. 7 What has been said in regard to the sufficiency of the evidence to support the judgment of the trial court applies both to defendant's first assignment of error and second assignment of error. For the reasons above stated, it is our conclusion that the ... ...