Elias v. Midwest Marble & Tile Co.
| Decision Date | 02 October 1956 |
| Docket Number | No. 37087,37087 |
| Citation | 1956 OK 259,302 P.2d 126 |
| Parties | Edward ELIAS, Plaintiff in Error, v. MIDWEST MARBLE and TILE COMPANY, a Corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In an action for the recovery of damages for personal injuries and vehicle damage sustained through the alleged negligence of an alleged employee, the burden is upon the plaintiff to show, not only that the alleged employee was an employee of the defendant, but that at the time the injury was sustained and the property damage suffered he was engaged in the performance of an act which was within the scope of his employment.
2. Where an employee leaves the place of his employment at the close of his day's work for the purpose of going to his home, and while on the way to his home he negligently injures another, his employer is not liable for the result of the injury.
3. As a general rule, a man's employment does not begin until he has reached the place of his employment, and does not continue after he has gone, and where employer's liability for negligent acts of his employee is determined under the doctrine of respondeat superior the rules relating to tasks applied in workmen compensation cases has no application.
Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.
Action to recover for personal injury and property damages arising out of vehicle collision. Plaintiff appeals from order overruling motion for a new trial wherein trial court had sustained a demurrer to the evidence. Affirmed.
Kavanaugh Bush, Tulsa, for plaintiff in error.
Rucker, Tabor & Cox, Truman B. Rucker, Joseph A. Sharp, Tulsa, for defendant in error.
This is an appeal from the order of the District Court of Tulsa county, overruling a motion for a new trial, of plaintiff in error, who as plaintiff had brought action for recovery of personal injury and property damages arising out of a vehicle collision occurring on a street in Tulsa. Only Midwest Marble & Tile Company, a corporation, defendant in error, was defendant in the trial court. The sole question here involved is whether or not there was sufficient evidence that the driver of the vehicle colliding with plaintiff's car was, as claimed by plaintiff, 'in the course of his employment' for defendant at the time of the collision. If there was sufficient evidence on this point the trial court erred in sustaining the demurrer, taking the case from the jury and rendering judgment for defendant.
The evidence adduced by plaintiff in support of the point here in issue consisted of the testimony of Fred Storozyszyn. His testimony insofar as it relates to the issue was, in substance, as follows: he was the driver of the car which collided with plaintiff's car; the car belonged to him and he paid the operating costs; he was, on the date of the accident, employed by the defendant as a tile setter's helper, and had worked that day, a Saturday, from approximately 10 A.M. to noon, and was returning from work to his home when the collision occurred; his work week was from Friday morning to Thursday afternoon, Saturdays excluded; the first 40 hours of each week, regardless of the days worked, were computed on straight time, all compensation of additional hours was on a basis of time and one-half; on the day of the collision he was offered work for that day and was free to accept or reject the offer; if he had finished the week an full time he would have received time and one-half for the two hours completed on that day; his pay on each day of employment started when he arrived on the job, and stopped when he left.
In Wilson & Co. v. Shaw, 157 Okl. 34, 10 P.2d 448, this court in paragraph 1 of its syllabus stated:
'In an action for the recovery of damages for personal injuries sustained through the alleged negligence of an alleged employee, the burden is upon the plaintiff to show not only that the alleged employee was an employee of the defendant, but that at the time the injury was sustained he was engaged...
To continue reading
Request your trial
-
Nelson v. Pollay
...Layton, Okl., 395 P.2d 393, 396-397 (1964). See also Braden v. Hendricks, Okl., 695 P.2d 1343, 1352 (1985); Elias v. Midwest Marble and Tile Co., Okl., 302 P.2d 126, 127-128 (1956); Mid-Continent Pipeline Co. v. Crauthers, Okl., 267 P.2d 568, 571 (1954); World Pub. Co. v. Smith, 195 Okl. 69......
-
Anderson v. Eichner, SERVICES--OKLAHOMA
...Layton, Okl., 395 P.2d 393, 396-397 (1964). See also Braden v. Hendricks, Okl., 695 P.2d 1343, 1352 (1985); Elias v. Midwest Marble and Tile Co., Okl., 302 P.2d 126, 127-128 (1956); Mid-Continent Pipeline Co. v. Crauthers, Okl., 267 P.2d 568, 571 (1954); World Pub. Co. v. Smith, 195 Okl. 69......
-
Harris v. Oro-Dam Constructors
...v. Roach (1st Cir. 1953) 204 F.2d 499, 501; Campbell's Case (1934), 288 Mass. 529, 193 N.E. 365, 366--367; Elias v. Midwest Marble and Tile Co. (Okl.1956) 302 P.2d 126, 128; Laurie v. Mueller (1956) 248 Minn. 1, 78 N.W.2d 434, 438, fn. 10.) A California decision observes only that workmen's......
-
Anderson v. Falcon Drilling Co.
...does not begin until he has reached the place of his employment, and does not continue after he has gone. Elias v. Midwest Marble & Tile Company, Okl., 302 P.2d 126. However, the instant situation presents an exception to the general rule. Not only was it anticipated that an employee's car ......