Corn v. City of Sapulpa

• Decision Date: 04 February 1941
• Docket Number: 29747.
• Citation: 110 P.2d 290,188 Okla. 418,1941 OK 44
• Parties: CORN v. CITY OF SAPULPA et al.
• Court: Oklahoma Supreme Court

110 P.2d 290

188 Okla. 418, 1941 OK 44

CORN v. CITY OF SAPULPA et al.

No. 29747.

Supreme Court of Oklahoma

February 4, 1941

Syllabus by the Court.

1. A petition when challenged by a general demurrer should be liberally construed in favor of the pleader.

2. A petition wherein it is alleged that an injury was sustained as a result of a tort committed by a servant while acting within the scope of his employment is not demurrable merely because of the further allegation that the instrumentality used in the commission of the tort was the property of the servant.

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Action by Geraldine Corn against the City of Sapulpa and another for injuries sustained in an automobile collision. From an order sustaining separate demurrers of the named defendant to the amended petition of the plaintiff, the plaintiff appeals.

Reversed and remanded.

L. J Burt, of Sapulpa, for plaintiff in error.

T. L. Blakemore, of Sapulpa, for defendant in error.

PER CURIAM.

This is an appeal by the plaintiff in error, plaintiff below, from an order which sustained the separate demurrer of the defendant in error, one of the defendants below, to the amended petition of said plaintiff in an action brought to recover damages for personal injuries alleged to have been sustained as the result of the negligence of Isaac Bristow, the other defendant below, in the operation of an automobile owned by the latter defendant and used by him in the performance of his duties as an employee of the defendant in error.

The controversy here is over the effect which should be given to the following language used in the amended petition, to wit "That on the 25th day of May, 1939, the defendant, Isaac Bristow, was the agent, servant and employee of the City of Sapulpa, defendant herein, working in the water department of said city, and it was his duty as such agent, servant and employee during the month of May, 1939, to read the several water meters and to collect delinquent water rents for said city of Sapulpa; that in order to facilitate said work of reading water meters and collecting delinquent water rents said Isaac Bristow was using his own car and the city of Sapulpa was furnishing him gasoline for use in said car to do said work. That on said 25th day of May, 1939, at about 1-45 or 2 o'clock in the afternoon, the defendant, Isaac Bristow, while in the performance of said duties aforesaid, was driving his car, a 1934 Model Ford V-8, coach type, south on the west side of Main Street in the city of Sapulpa, and at the same time the said Garland Anthony was driving a Terraplane automobile, 1935 Model, belonging to one W. O. Morgan, north on the east side of Main street in the city of Sapulpa; that as said Isaac Bristow approached the intersection of Cleveland avenue and Main street in said city he was driving his car at a high rate of speed, in excess of 25 miles per hour and in violation of the provisions of section 25 of ordinance 560 of the ordinances of the city of Sapulpa, and as he entered said intersection he suddenly, and without giving any signal or indication by outstretched arm or otherwise, and without slowing up the speed of his car, and in violation of the provisions of section 4 of ordinance number 560 of the ordinances of the city of Sapulpa, imprudently, negligently and carelessly made a U turn on Cleveland avenue and Main street driving his car immediately in front of and in the path of the Anthony car near the northeast corner of the intersection of...