Brownell v. Moorehead

• Decision Date: 02 January 1917
• Docket Number: Case Number: 6369
• Citation: 65 Okla. 218,165 P. 408,1917 OK 6
• Parties: BROWNELL v. MOOREHEAD.
• Court: Oklahoma Supreme Court

1917 OK 6

165 P. 408

65 Okla. 218

BROWNELL v. MOOREHEAD.

Case Number: 6369

Supreme Court of Oklahoma

Decided: January 2, 1917

Syllabus

¶0 1. Witnesses--Objection to Testimony--Competency of Witness. An objection to the competency of testimony does not raise the question of the competency of a plaintiff''s wife to testify at all concerning the matter as to which inquiry is made.

2. Principal and Agent--Powers of Agent--Emergency. A servant, acting in an emergency in the absence of his principal, and apparently for the protection of the interests of the principal, may frequently do things which transcend his usual authority, and they will be deemed to be authorized.

3. Principal and Agent--Witnesses--Wife''s Agency for Husband--Wife. A wife was directed by her husband to answer the telephone. Held, that she was thereby constituted his agent for the purpose of hearing any message intended for him, and conveyed on such telephone call, and to repeat such message to him. Held, further. that the wife was a competent witness in a suit brought by her husband to testify concerning the fact of such conversation, and to detail the message received. Whether she was a competent witness, under the last clause of subdivision 3. sec. 5050, Rev Laws 1910, to testify concerning any communication of such message by her to her husband. not being raised, is not decided.

4. Trial--Admission of Evidence--Responsiveness--Motion to Strike. It is not permissible for counsel to be quiet end allow evidence to come out and take advantage of it, if favorable, and, if not, to ask that it be stricken out. Still less can a party complain of the court''s refusal to sustain such a motion to strike when the testimony given is in direct response to one of his own questions.

5. Appeal and Error--Harmless Error--Admission of Impeaching Evidence. The admission of evidence, which is competent to impeach a witness. prior to any proper foundation therefor being laid, will not be held to constitute prejudicial error, where afterward, during the course of the trial, a proper foundation therefor is laid.

6. Trial--Admission of Evidence--Limitation of Purpose--Request. The general admission of evidence competent for purposes of impeachment, but otherwise incompetent, will not be held to be prejudicial error, where no request was made to limit the effect of the testimony to purposes of impeachment.

7. Appeal and Error--Harmless Error--Remarks of Trial Court. Remarks of the trial court examined, and held not prejudicial.

8. Appeal and Error--Courts--Harmless Error--Instruction--Precedent. Whether or not an instruction, correct as an abstract statement of the law, but inapplicable to the facts of the case, was prejudicial to the right of plaintiff in error must be determined by this court upon the whole facts in each particular case, and the determination will ordinarily not serve as a precedent for any other case, since the same instruction may be prejudicial in one case and not in another, depending upon the facts of each case and the circumstances under which it is given. A cause ought not to be reversed for misdirection of the jury in this regard, unless this court can say that such misdirection constituted a substantial violation of a statutory or constitutional right or probably resulted in a miscarriage of justice.

9. Principal and Agent--Continuing Agency--Proof--Circumstantial Evidence. A continuing agency may be proven by facts and circumstances tending to show the existence of such agency both prior and subsequent to the date of the transaction. Such facts and circumstances may properly include specific instances of conduct when such instances are sufficiently numerous to base thereon an inference of systematic conduct under substantially similar circumstances so as to be naturally accountable for by a system only and not a casual recurrence. The range of time preceding and subsequent to the event in question, within which such instances should have occurred in order to be admissible in evidence, is generally a matter in the judicial discretion of the trial court. Such circumstantial evidence is admissible even though there be direct testimony denying the existence of the agency.

10. Same--Agency--Question for Jury--Evidence. Proper circumstantial facts tending to prove the existence of an agency being in evidence, and the agency being denied, the trial court was not in error in submitting the question of the existence of the agency to the jury, and in instructing them that they might take such facts and circumstances, as well as those surrounding the particular transaction, into account in determining whether or not an agency existed.

J. B. Dudley, Hutchin & Burke, and Gray & McVay, for plaintiff in error.

Williams & Luttrell, T. W. Mayfield, and McAdams & Haskell, for defendant in error.

BURFORD, C.

¶1 This action arose out of an accident occurring upon the Purcell-Lexington bridge, caused by the breaking of a buggy in which one Albert Brownell was transporting the plaintiff, Moorehead, from Lexington in an endeavor to board an outgoing train at Purcell. Plaintiff alleged and introduced evidence tending to prove that Albert Brownell was the agent of his father, J. A. Brownell, who conducted a bus or hack line framing from Lexington to Purcell, and who was a common carrier of passengers for hire; that plaintiff, being desirous of going to Purcell, called by telephone the Brownell establishment and ordered a conveyance; that when the conveyance did not come, he again called; later the telephone rang, and he requested his wife to answer, it; that she did so, and was advised by Mrs. Brownell, acting as agent for her husband, to have plaintiff walk down the street, and that she would send a buggy to meet him and carry him to Purcell; that plaintiff did so, and met Albert Brownell, who took him in, and in the course of the trip, in an endeavor to meet the approaching train, drove so recklessly that the buggy broke, throwing plaintiff against the bridge and breaking his hip. It was alleged as negligence that the buggy was old, worn, and unsafe; that the horse was wild and unsafe. that Albert Brownell was "an unsuitable and improper person to have charge of said conveyance," and was a "willful and reckless driver," and that the horse was driven at a "high and reckless" speed Defendant denied, and introduced evidence to support his denial, that Albert Brownell was his agent for any purpose; that Mrs. Brown ell had authority to furnish a buggy for use in the transfer business; that she, in fact, did furnish or direct the furnishing of such buggy; that she had the telephone conversation above referred to with Mrs. Moorehead, and that there was negligence on the part of the defendant or his agents. Defendant also pleaded contributory negligence on the part of the plaintiff. The cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $ 1,800. The resulting judgment is now before us for review upon numerous assignments of error. So far as the testimony is concerned, it cannot be reviewed without coming to the unfortunate conclusion that it cannot, in any way, be reconciled, and that not only one, but several witnesses upon this trial committed willful and corrupt perjury. Upon which side this occurred was for the jury to determine. We are satisfied that the testimony would have reasonably supported a verdict for either party, and therefore does support the verdict rendered. Other assignments are considered seriatim. Error is alleged in that Mrs. Moorehead. wife of the plaintiff, was allowed to testify concerning certain statements made by Albert Brownell on the evening after the accident occurred. The objection made was "incompetent, irrelevant, and immaterial, no proper foundation having been laid." The objection to the competency of the testimony does not, under our practice, raise the question of the competency of the wife of plaintiff under section 5050, Rev. Laws 1910, to testify at all concerning the matter as to which inquiry is made. Muskogee Electric Traction Co. v. McIntire, 37 Okla. 684, 133 P. 213, L. R. A. 1916C, 351: Hartzell v. Hartzell, 42 Okla. 390, 141 P. 772, Ann. Cas. 1916D, 1191: Bell v. Territory, 8 Okla. 75, 56 P. 853; Williams v. Joins, 34 Okla. 733, 126 P. 1013; Butler v. Wilson, 54 Okla. 229, 153 P. 823. As. to the competency of the testimony itself, we think it clearly admissible, not as a statement of the agent to bind the principal ( Chickasha Cotton Oil Co. v. Lamb, 28 Okla. 275, 114 P. 333), but as impeachment of the witness, Albert Brownell. He had previously been asked upon cross-examination, without objection, concerning certain alleged statements made at the home of plaintiff, and had denied making such statements. Thereafter on rebuttal Mrs. Moorehead was asked concerning the same statements, and allowed to testify that such statements, in substance, were made by Albert Brownell, at the plaintiff''s home on the evening of the accident. There was no request to the court to limit the effect of the testimony to purposes of impeachment ( A., T. & S. F. R. Co. v. Baker, 37 Okla. 48, 130 P. 577), and, as tending to impeach, the testimony itself was competent. The next error alleged is as to the admission of the testimony of Mrs. Moorehead concerning a telephone conversation with Mrs. Brownell shortly prior to the accident. It appears that plaintiff, after telephoning for a conveyance, was awaiting its arrival. when the telephone rang. He directed his wife to answer it, which she did. Mrs. Brownell was on the wire and, according to Mrs. Moorehead. told Mrs. Moorehead that she had turned in the call to two of the drivers and did not understand why they did not respond, but to tell Mrs. Moorehead "to start this way, and I will send a single rig after him, and maybe--I think we can make the train all right." Objection was made to the competency of the testimony, and to that of the witness to relate it. As to...