Cosar v. Bemo, 36187

• Decision Date: 29 March 1955
• Docket Number: No. 36187,36187
• Citation: 282 P.2d 222
• Parties: Roy COSAR and Dickie Johnson, Plaintiffs in Error, v. John BEMO, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 222

282 P.2d 222

1955 OK 90

Roy COSAR and Dickie Johnson, Plaintiffs in Error, v. John BEMO, Defendant in Error.

No. 36187.

Supreme Court of Oklahoma.

March 29, 1955.

Rehearing Denied April 19, 1955.

Syllabus by the Court.

1. In action by plaintiff farm hand against his employer and employer's chauffeur, as defendants, for damages for personal injuries suffered from accident on trip to country store in employer's sedan automobile driven by said chauffeur; Evidence examined and Held: That plaintiff and defendant chauffeur were not fellow servants on the trip involved and that trial court's refusal to submit that question to the jury was not error.

2. Where at the close of the trial of said cause plaintiff's counsel during his closing argument answered the question asked by defendants' counsel in his closing argument as to why plaintiff had not sued driver of the other car involved in the accident, by stating that the latter driver's widow had recovered it in another action a specified judgment against same defendants; Held: Under the circumstances indicated by the record said prejudicial statement did not warrant reversal.

Appeal from the District Court of Seminole County; Robert Howell, Judge.

Action by plaintiff to recover damages against his employer and the employer's chauffeur for personal injuries he received in a collision the employer's auto had with another auto. From a judgment for plaintiff, defendants appeal. Affirmed.

Embry, Crowe, Tolbert, Boxley & Johnson, by V. P. Crowe, Oklahoma City, and Wells & Wells, by A. S. Wells, and William E. Bishop, Seminole, for plaintiffs in error.

Allen G. Nichols and Walter Billingsley, Wewoka, for defendant in error.

BLACKBIRD, Justice.

Dickie Johnson, who owns a farm in Seminole County, Oklahoma, does not have a driver's license, but owns a Dodge Sedan automobile and also a truck which is used in connection with his limited farming and cattle raising operations. The present action arose out of an automobile accident in which the Dodge Sedan was involved. John Bemo, plaintiff herein, had been employed by Johnson as a farm hand approximately two years when the accident occurred, and, Roy Cosar, driver of the Dodge, had been employed by Johnson as his chauffeur approximately three weeks. The other automobile involved in the accident, which occurred less than a mile and a half from the Johnson farm, was owned by the Emsco Company (referred to in the record as a 'Drilling' Company, an 'Equipment' Company, and a 'Manufacturing' Company) and was driven by one of its employees, Charles Elbert Bush, who lost his life as a result thereof.

When the accident occurred in November, 1951, Bemo and Johnson's chauffeur, Cosar, riding alone in Johnson's Dodge Sedan were returning from a country store and filling station, where they had gone to cash a check for Johnson and procure gasoline for the car. Bemo's subsequent commencement of the present action was to recover damages against both Cosar and Johnson, as defendants, for personal injuries he suffered therefrom. All three parties will hereinafter be referred to as they appeared in the trial court.

Defendants pleaded that both plaintiff and Cosar were agents and employees of Johnson, action within the scope of their employment at the time of the accident, and, at the close of plaintiff's evidence separately demurred to it. In support of the defendant Johnson's demurrer, it was urged that said evidence showed Cosar and plaintiff were fellow servants. At the close of all of the evidence defendants renewed their objections by separate motions for a directed verdict.

Subsequently defendants moved the court to declare a mistrial after one of plaintiff's attorneys had told the jury, during his final argument, that the widow of the deceased Emsco Company's employee, Bush, had, in a previous death action in another court, obtained a verdict and judgment of $48,800 against the same defendants. Defendants' motion was overruled, and the jury returned a verdict against defendants in this action for $38,500. At the hearing of defendants' separate motions for a new trial, they were overruled upon condition of a remittitur suggested by the court and consented to by plaintiff's attorneys, reducing the amount of plaintiff's recovery by $15,000, and judgment was thereafter entered accordingly. From said judgment, defendants have lodged the present appeal.

The first proposition urged by defendants' counsel concerns the trial court's alleged errors in overruling the defendant Johnson's demurrer to the evidence and motion for directed verdict. The argument is the same as it was in the trial court, to-wit: That the fellow servant rule is applicable to exonerate Johnson, the employer, from all liability in the present case in the absence of a showing of any negligence on his part. It is plaintiff's position that the fellow servant rule does not apply here because of the difference between the duties of his employment and that of Cosar. His counsel argues Cosar was employed exclusively as a chauffeur, while plaintiff was just a farm hand. Most of the cases counsel cite are early ones from other jurisdictions, which are either distinguishable on the basis of their facts or apply a theory of the fellow servant doctrine not now adhered to in this jurisdiction. The trend of modern authority is away from making the application of the rule solely dependent upon differences in the duties of the injured employee and the one whose negligence caused his injuries. See Burroughs v. Michel, 142 Kan. 814, 52 P.2d 633; Atchison & Eastern Bridge Co., 71 Kan. 13, 80 P. 18, 1 L.R.A., N.S., 682; 35 Am.Jur., 'Master and Servant', sec. 331 et seq.; Restatement Of The Law, Agency, secs. 475, 480, 486 (Comments, p. 1139). We find it difficult, if not impossible however, to reconcile and harmonize the recent cases on the subject in the various jurisdictions. Carter v. Uhrich, 125 Kan. 192, 264 P. 31; Zarski v. Creamer, 317 Mass. 744, 59 N.E.2d 704; Sandefur v. Sandefur, Tex.Civ.App., 232 S.W.2d 111, and Blanchard v. Gallahar, 72 Ga.App. 132, 33 S.E.2d 379, all cited by defense counsel are readily distinguishable on the basis of their facts from the case at bar (without regard to any inconsistencies in the application of their statements of the fellow servant rule) but Charles Weaver & Co. v. Harding, 182 Miss. 345, 180 So. 825 (also cited) is not so readily distinguishable, if at all, from cases like Haraway v. Mance, 186 Ark. 971, 56 S.W.2d 1023, and French v. Cherry, 186 Ark. 991, 57 S.W.2d 404 which reached opposite results. No Oklahoma case is cited, and we have found none directly in point. Stout v. Schell, 206 Okl. 153, 241 P.2d 1109, strongly relied upon by defendant, was an action brought by a truck driver's helper for injuries he suffered on account of his employer's alleged negligence. This court's affirmance of the trial court's judgment sustaining defendant's demurrer to the evidence upon application of the fellow servant rule to the facts of that case is in harmony with the opinions of other courts in similar cases. See, for instance, Boston v. Kroger Grocery & Baking Co., 320 Mo. 408, 7 S.W.2d 1006, and Black Diamond Lbr. Co. v. Smith, 190 Ark. 91, 76 S.W.2d 975. In all of the 'driver's helper' or 'companion driver' cases, as well as Carter v. Uhrich, supra, plaintiffs were truly fellow servants of the drivers and, at the time of the accidents involved, were actually engaged in duties in the course, and within the scope, of their employments in such a way that they could correctly be regarded as having assumed the particular risks involved, while here the situation is different. When the accident in the present case occurred, plaintiff was doing nothing shown to have been within the sphere of his regular duties as a farm hand; and we think it is of no controlling importance that he was shown to have, on previous occasions, accompanied Cosar and Johnson, in the latter's truck driven by Cosar, to haul hay and corn for Johnson's livestock, and that Johnson had told plaintiff and Cosar they were to make another such trip after their return in the sedan from the country store and filling station on the day of the accident.

Apparently all three of the parties here involved were Seminole Indians. Plaintiff's limited knowledge of the English language is obvious from his testimony and he testified that he could neither read, write, sign his name, nor count to a hundred. He was an unskilled laborer. From the evidence it is reasonable to assume that he was not licensed for, nor capable of, operating a motor vehicle. He definitely was not employed to discharge the duties of a driver's or chauffeur's helper as distinguished from a farm hand or doer of chores on a farm. On the trip, during which the accident occurred, Cosar had complete control of the automobile in that he alone, as between the two alleged fellow servants, knew how to operate it and had the full power and authority to say how it should be operated. But notice the statement in Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 991, 136 P. 835, 45 L.R.A.,N.S., 338 L.R.A.1915F, 782. Not only that but it was never shown that plaintiff had any duty whatsoever to perform in connection with that particular trip or that he had ever before been on that kind of a trip, during the period he had been employed by Johnson. While there was testimony, from which it could be inferred, that the employer, Johnson, intended and perhaps even instructed, plaintiff to accompany Cosar on the trip to the store and filling station, no reason for this ever appears. The only objects of the trip, i. e., to get Johnson's check cashed and obtain gasoline, were tasks that more properly came within the sphere of Cosar's regular employment. In some of these aspects of the case it is similar to Johnson v. Ladd, 138 Or. 371, 5 P.2d 1062, in which it was held that a gardener authorizedly driving his employer's...