Echols v. Hurt
| Decision Date | 06 January 1925 |
| Docket Number | Case Number: 11332 |
| Citation | 116 Okla. 43,243 P. 493,1925 OK 14 |
| Parties | ECHOLS v. HURT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Master and Servant--Personal Injuries by Employee -- Negligence of Owner of Automobile--Injuries--Scope of Employment.
An employe employed by the owner of a garage to operate service cars at the request and direction of the owner, and who is to go home for his midday meal, is not, when using the automobile to go to such meal, without the permission or knowledge of the owner, within the scope of his employment, so as to render the owner liable for the employer's negligent act in injuring a pedestrian with the machine. An automobile is not a dangerous instrumentality.
2. Evidence--Presumption--When Inoperative.
A "presumption" in the true sense, that is, a legal presumption, is in its characteristic feature a rule of law attaching to evidentiary facts certain procedural consequences as to the duty of production of other evidence by the opponent. If the opponent does offer evidence to the contrary, the presumption disappears and the case stands upon the facts and the reasonable inferences to be drawn therefrom.
Commissioners' Opinion
Error from District Court, Muskogee County; Chas. G. Watts, Judge.
Action by C. Echols against Wood Hurt and others, doing business under the firm name of Wood Hurt Motor Company. From the judgment, plaintiff appeals. Affirmed.
Harry G. Davis and Neff & Neff for plaintiff in error.
James W. Cosgrove, for defendants in error.
¶1 Plaintiff sued defendants, a copartnership, for damages accruing by reason of personal injuries received in an automobile accident. Plaintiff alleged that he was struck while leaving a street car and crossing the street, by a service car belonging to defendants and operated by their agent, servant, and employe. Defendants admitted the ownership of the car and that the driver thereof was in their employ. They contended, however, that at the time and place said injuries were sustained by plaintiff, the driver of the car, one Buchannan, was not driving or operating said automobile as the agent, servant, or employe in their business, but that said Buchannan was engaged upon an independent mission of his own wholly separate and apart from the business of his employers.
¶2 It was further contended by plaintiff that Buchannan at the time of the infliction of said injuries was on the business of his employers, and that he was using said car for the purpose of going home to his dinner, thereby shortening the time of his noon absence and expediting his return to work, for the benefit of his employers. There was a sharp conflict in the testimony concerning the material issues of fact, and this was resolved by the verdict of the jury in favor of the defendants. The plaintiff appeals.
¶3 The first error assigned is the refusal of the court to permit the unverified original answer of the defendants to be introduced in evidence. The original answer of the defendants was an unverified general denial; the first amended answer was an unverified general denial. The second amended answer contained a specific denial of the allegations of agency, and was duly verified in compliance with section 287, Comp. Stat. 1921. It is contended by appellant that the original unverified answer, since the same failed under certain circumstances to put in issue an allegation of agency, should have been admitted in evidence as an admission of agency. We think that this contention is highly technical. It is clear that the failure to verify the answer was an oversight which the court permitted the defendants to correct by filing a verified answer. Therefore the alleged error is not substantial and is not ground for reversal.
¶4 Appellant's second assignment of error is predicated upon the action of the trial court "in not allowing questions to be answered which were asked to show specifically that Harvey Buchannan used the automobile of the defendants every day from the time of the accident until he left the employment of the defendants for the purpose of going to his dinner and for any other purpose." The alleged error is predicated upon the following cross-examination: " (Question asked of Buchannan on cross-examination). Upon an objection thereto the court sustained the same. We cannot agree that the form of the question was proper or material to establish the contention set forth in the assignment of error. It does not appear from the form of the question that it was material at all. and the action of the trial court in sustaining the objection was not manifest error. It should be recalled by counsel presenting cases in this court that error is not presumed, but must be made manifest. The claim of error based on this assignment therefore is plainly insufficient.
¶5 The fourth assignment of error is to the effect that the trial court erred in instructing the jury, many different times that the defendants were not responsible, for the operation of the automobile by an employe with the knowledge and consent of the defendants if the employe was at the time using it for his-personal convenience in going to his noon meal. The foregoing error is predicated upon the giving of instructions numbered 9, 10, 11, 12, 12a, and 13, which are as follows:
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Hawkins v. OKLA. CTY. COURT CLERK'S OFFICE, 95,603.
...Corp., 1978 OK 13, ¶ 11, 583 P.2d 482, 486; Rotramel v. Public Serv. Co. of Oklahoma, 1975 OK 91, ¶¶ 13-14, 546 P.2d 1015, 1017; Echols v. Hurt, 1925 OK 14, 116 Okla. 43, 243 P. 493, 495. This relationship between the basic fact and the presumed fact is carried through into the Evidence Cod......
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Kan. Okla. & Gulf Ry. Co. v. Jones
...and not weight to be thrown in with the evidence, for when evidence is introduced, the presumption flies out of the case ( Echols v. Hurt, 116 Okla. 43, 243 P. 493; Kramer v. Nichols, etc., Co., 103 Okla. 208, 229 P. 767; Wigmore on Evidence, 1st Ed. sec. 2491, vol. 4, p. 3534), and the iss......
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