Bourland v. Mosier

• Decision Date: 08 April 1924
• Docket Number: 13413.
• Parties: BOURLAND v. MOSIER ET AL.
• Court: Oklahoma Supreme Court

225 P. 348

98 Okla. 262, 1924 OK 399

BOURLAND v. MOSIER ET AL.

No. 13413.

Supreme Court of Oklahoma

April 8, 1924

Syllabus by the Court.

The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence but the nature and extent, rests ordinarily upon the party who alleged it.

Held, that the trial court properly sustained demurrer to plaintiff's evidence, and that same fails to establish the authority of the alleged agent to bind the defendants.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Muskogee County; Benjamin B. Wheeler Judge.

Suit by R. H. Bourland against John Mosier, trustee, and others. Judgment for defendants on demurrer to evidence, and plaintiff appeals. Affirmed.

Vilas V. Vernor, of Muskogee, and M. A. Dennis, of Okmulgee, for plaintiff in error.

Mosier Bohannon & Mosier, of Muskogee, for defendants in error.

ESTES C.

The Acme Drilling Company, under contract, was drilling an oil and gas well for defendants in error near Okmulgee. Plaintiff in error, Bourland, sued defendants in error for $352 for transporting a pumper, Hunt, to and from said well. Plaintiff alleged that one Bowser was the agent of defendants in charge of drilling and supervising said well; that said Bowser employed plaintiff to haul said Hunt at $4 per trip from the city of Okmulgee. Defendants, by verified answer, denied that they ever thus employed plaintiff, and denied the agency of Bowser to employ plaintiff. Judgment was for defendants on demurrer to plaintiff's evidence.

Did the court err in sustaining such demurrer? There is some evidence tending to show that Bowser acted for some of defendants in certain matters in and about the drilling. Plaintiff testified that Hunt employed plaintiff to haul the latter. On cross-examination Hunt testified:

"Q. What was the conversation when Bowser employed you? A. Well, he just asked me did I think I could run the pump, and I told him, 'Yes,' and he asked me did I have a way to get out, and I told him, 'No,' I could get the jitney driver to haul me out, and he said all right. * * *

Q. As a matter of fact you were supposed to furnish your own conveyance--you were doing the work for four and a half a day--that was your pay to pump that water, for four and a half a day? A. Yes, sir; I was supposed to pump it for four and a half a day, and he was supposed to furnish a way to get out there. * * *

Q. You mean to tell the jury when your contract was to pay you four and a half a day and furnish you a car to go back and forth? A. Yes, sir. * * *

Q. What arrangement did you make with Mr. Bourland for hauling you, if any? A. Well, Mr. Bowser asked me to get somebody to haul me out." (The court struck the last answer as not proper.)

In Reed v. Robinson, 83 Okl. 68, 200 P. 773, it is said:

"The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence,

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