Condo v. Beal
| Decision Date | 31 January 1967 |
| Docket Number | No. 40894,40894 |
| Citation | 1967 OK 30,424 P.2d 48 |
| Parties | Eula CONDO, D. R. Condo and Daniel Condo, Plaintiffs in Error, v. Bertha BEAL, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In an action of legal cognizance a demurrer to plaintiff's evidence or motion for directed verdict should be overruled unless there is an entire absence of proof tending to show a right to recover; and, in passing upon a demurrer to the evidence or motion for directed verdict, the trial court must consider true all of the evidence favorable to the party against whom the demurrer or motion is directed together with all inferences that may be reasonably drawn therefrom and disregard all conflicting evidence favorable to the demurrant or movant.
2. A juror will not be permitted to impeach the verdict by affidavit or testimony for misconduct inside the jury room.
3. No single instruction need contain all the law to be considered and when the instructions taken as a whole fairly submit the issues to the jury, the judgment of the trial court on the verdict will not be disturbed.
Appeal from the district court of Haskell County; George W. Windham, Judge.
Action for damages by plaintiff, Bertha Beal, against the defendants, Eula Condo, D. R. Condo and Daniel Condo. From verdict and judgment for plaintiff and order overruling defendants' motion for new trial, defendants appeal. Affirmed.
J. F. Hudson, Stigler, Green & Green, Sallisaw, for plaintiffs in error.
Stipe, Gossett & Stipe, McAlester, for defendant in error.
This is an appeal from judgment for plaintiff and order overruling defendants' motion for new trial in an action for damages brought by plaintiff, Bertha Beal, against defendants, Eula Condo, D. R. Condo and Daniel Condo. In two causes of action, plaintiff sued for damages for loss of earning capacity, physical and mental suffering, medical expenses and property damages in the total amount of $62,326.40. Judgment was for plaintiff in the amount of $2840.31.
Three vehicles were involved in the accident which led to this damage suit. Eula Condo was driving west on Highway No. 9 near Stigler, Oklahoma. Behind her, and driving in the same direction, was the plaintiff, Mrs. Beal. Approaching from the opposite direction (driving east) was a vehicle driven by Daniel Condo, the nephew of Eula Condo. Daniel Condo had been doing some work (hay bailing) for the third defendant, D. R. Condo, husband of Eula Condo. The two Condo vehicles stopped, or were stopping, so Eula Condo could tell Daniel Condo that there would be no hay baling that afternoon. There was evidence from which the jury could have found that Eula Condo stopped suddenly with no signal, with her car entirely on the strip of blacktop paving, and that Daniel Condo's truck stopped partially on the paving, which was only 22 feet wide at that point. Mrs. Beal testified she put on her brakes, saw she might slide into the rear of Eula Condo's vehicle, swerved to the left, passed between the two vehicles, hit a guard post south of the roadway and went down an embankment and into a tree. Mrs. Beal further testified that there was only about 'an inch and a half on either side' as she passed between the Condo vehicles. Another witness testified that there was 'barely room for a car to go through there'.
D. R. Condo was sued on the theory that his wife, Eula Condo, was his agent, servant or employee for the purpose of delivering the message to Daniel Condo.
At the close of plaintiff's case in chief, defendants demurred to the evidence. At the close of all the evidence they demurred again and made a motion for directed verdict upon general grounds, and, as to defendant D. R. Condo, upon the special ground that there was no evidence that Eula Condo was acting as the agent, servant or employee of D. R. Condo.
On appeal, defendants argue first that there was no evidence that Eula Condo was the agent of D. R. Condo in delivering the message to Daniel Condo, and that the trial court therefore erred in overruling the demurrer at the close of all the evidence as to D. R. Condo.
On this point, it is conceded by all parties that Mrs. Condo's actual purpose in stopping was to tell Daniel Condo that there would be no hay baling that afternoon, and that she did deliver the message. The gist of defendant's argument is that there was no competent evidence that D. R. Condo Directed her to deliver such a message.
On direct examination, Mrs. Beal, the plaintiff, testified that immediately after the accident Mrs. Condo told her that '* * * she stopped to tell Dan that Ray (D. R. Condo) told her to tell Dan they wasn't going to bale no hay that afternoon and she stopped to tell him'. Defendants argue that this is the only evidence in the record on the agency question, and seek the benefit of the general rule that the fact of agency may not be proved by the admissions of the agent. However, there was other evidence on this question. Mrs. Beal testified that after she left the hospital, D. R. Condo came to see her '* * * and he said 'It was my wife's fault' and said--he said that she was working for me at that time and he said 'I will see you get paid for this damage ". On cross-examination, D. R. Condo testified as follows on this question:
We hold that the court did not err in overruling D. R. Condo's demurrer raising the agency question.
Defendants' second proposition is that the court erred in overruling their general demurrer at the close of all the evidence. In their discussion, defendants attempt to show that, chiefly upon the basis of the testimony of the investigating highway patrolman, there was at least 15 1/2 feet between the two Condo vehicles, which was ample room through which the Beal vehicle could have passed without any loss of control. However, the record shows that both Condo vehicles had been moved before the officer arrived an hour after the accident, and that his only knowledge of the locations of the Condo vehicles at the time of the accident consisted of what the respective drivers told him. As we have seen, there was evidence that the Condo vehicles were much less than 15 1/2 feet apart and that Eula Condo's vehicle stopped suddenly and without warning.
The only authority cited under this proposition is Mote v. Hilyard, Okl., 358 P.2d 844. That case is similar to this one only in that the accident involved three vehicles, two of which had stopped so the drivers could engage in conversation. A third car, driven by Mote, crashed into one of the stopped cars, driven by Hilyard. In affirming the trial court's order sustaining Hilyard's demurrer to the evidence under Mote's petition for damages, this court noted that 'Under the most favorable interpretation' to Mote, there was at least thirteen feet between the stopped vehicles, and that it was undisputed that Mote saw the stopped vehicles while he was still 1400 feet away. The conclusion was that no...
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