Employers Cas. Co. v. Barnett

• Citation: 205 Okla. 73,1951 OK 186,235 P.2d 685
• Decision Date: 26 June 1951
• Docket Number: No. 34124,34124
• Parties: EMPLOYERS CAS. CO. et al. v. BARNETT.
• Court: Supreme Court of Oklahoma

Page 685

235 P.2d 685

205 Okla. 73

EMPLOYERS CAS. CO. et al. v. BARNETT.

No. 34124.

Supreme Court of Oklahoma.

June 26, 1951.

Rehearing Denied Sept. 11, 1951.

Syllabus by the Court.

1. If there is any competent evidence reasonably tending to support the verdict and judgment rendered thereon, the same will not be disturbed on appeal.

2. Motion for continuance, where based upon the absence of a witness whose deposition and testimony in a previous trial of the same case were available and could have been admitted in evidence but were declined by movant, is addressed to the sound discretion of the court, and its holding thereon will not be disturbed unless this discretion has been abused.

3. A master and his servant may be proceeded against jointly or severally where the master's liability is based upon the doctrine of respondeat superior; and where proceeded against jointly, the dismissal without prejudice as to the servant does not preclude the prosecution of the action against the master.

4. A joint action may be maintained against a motor carrier and his liability insurance bondsman under Sec. 169, Title 47, O.S.1941.

5. In order to raise the question of an irregularity in the selection of the jury, or that the jury was not duly impaneled, or that the entire jury list from which the jury panel was selected and drawn was illegal, or that the same was not selected, filed and recorded in accordance with the law, the alleged error must be specifically presented to the trial court at or before the time the jury is sworn to try the cause. Sec. 13, Title 38, O.S.1941.

6. Where the instructions, when considered as a whole, fairly instruct the jury as to the law applicable to the issues made, the verdict and judgment rendered thereon will not be disturbed on appeal.

Cheek, Cheek & Cheek, Oklahoma City and W. B. Edwards, Seminole, for plaintiffs in error.

Schwoerke & Schwoerke, Oklahoma City, James E. Driscoll and Homer H. Bishop, Seminole, for defendant in error.

HALLEY, Justice.

The death of the plaintiff, William Henry Barnett, since the trial of this case has been suggested, and the cause has been revived in the name of Mrs. William Henry Barnett, administratrix of the estate of William Henry Barnett, deceased, as defendant in error. We shall refer to the parties as they appeared in the trial court, or by name.

It was alleged that on February 23, 1947, plaintiff was driving north on Highway 99 a short distance south of Seminole, Okla., at about ten o'clock A.M. That at the same time, an oil field truck owned and operated by J. E. Cheatham, d/b/a Cheatham Truck Line, and driven by his agent and employee, Sam Plank, was traveling south on said highway. That upon plaintiff's approaching the truck and just before meeting it, the truck, without any warning signal, pulled sharply to the right and onto the shoulder of the highway and slowed down to make a left turn across the highway into the driveway of the J. E. Cheatham parking lot. That on the body of the float or bed of the truck was a Kelly joint or drill stem, some 40' or 45' in length, and some shorter lengths of pipe. That the drill stem extended some fifteen feet over and beyond the length of the truck bed, but had no red flag attached. That two cars were following the truck closely, and the first one turned sharply to the right to avoid the protruding drill stem, which extended over the entire right-hand lane of the highway by reason of the sharp turn of the truck to the right. That the second car following the truck, driven by Peter Boyd, found the same danger, and having no room to turn to the right, turned sharply to the left to avoid striking the drill stem or the truck, and in so doing collided with the plaintiff's car, which was being driven north. That the collision resulted in serious damage to plaintiff's car and in serious personal injuries to the plaintiff, rendering him permanently unfit for his regular work.

J. E. Cheatham was a Class B motor carrier under the law of Oklahoma, and had filed a public liability bond or policy with the Corporation Commission, as is required by law, which policy was issued by Employers Casualty Company and rendered it liable for damages arising from the negligent acts of J. E. Cheatham, his agents and employees, in the operation of his trucks. The liability of J. E. Cheatham and his insurer rested upon the alleged negligence of Sam Plank, the truck driver, in failing to signal his intention to stop or turn to the right of the highway, causing his trailer and its load to extend entirely across the right side of the highway and onto or across the center line thereof. It is also alleged that he failed to have on the protruding drill stem a red flag, as required by the rules and regulations of the Department of Public Safety, being Rule 10, Sec. 583, Title 69, O.S.1941, and that he was further negligent in failing to stop the truck at least three feet from the center of the road.

At the close of plaintiff's evidence, the defendants demurred thereto. The plaintiff then asked and was granted permission to re-open his case and dismiss without prejudice as to Sam Plank, the driver of the truck, whose negligence was charged with creating an emergency which caused plaintiff's injuries and damage. The trial proceeded with J. E. Cheatham and his insurance carrier as defendants. The jury found for the plaintiff on both causes of action. On motion for new trial, the court announced that the motion would be granted unless plaintiff remitted $21,800 of the amount warded under his second cause of action. This remittitur was announced in open court. The defendants filed an amendment to their motion for a new trial, and alleged irregularities in the selection of the jury panel from which the jury in this case was called, and sought to have the jury verdict set aside. This motion was denied.

The defendants moved for a continuance because the witness Sam Plank was absent. The motion was verbal. The plaintiff agreed that the deposition of this witness might be admitted in evidence. The court announced that defendants could use the deposition of the witness or the testimony given by him at the former trial of the case, and overruled the motion upon the refusal of the plaintiffs to accept the deposition or former testimony of the witness.

Judgment was rendered for the plaintiff for the amount found by the jury on plaintiff's first cause of action, and for the amount found under his second cause of action as reduced by the remittitur above mentioned. Defendants have appealed, and submit five assignments of error. We shall consider these assignments in the order presented in their brief.

It is first claimed that the judgment is not supported by the evidence. There is ample competent evidence to support the judgment. Several witnesses testified that the truck driver gave no signal of his intention to pull to the right of the road and stop, and to extend across the right side of the highway a portion of the truck and its load. That his action caused part of his trailer to extend entirely across the right side of the pavement; that the drill stem on the trailer extended some fifteen feet beyond the end of the trailer and carried no red flag on the end of the extended portion. The evidence as to plaintiff's injuries was sufficient to support the judgment.

Defendants contend that the court erred in denying them a continuance because of the absence of Sam Plank, the truck driver, who formerly had been a defendant. There is no question but that plaintiff's right to recover against J. E. Cheatham and his insurer depended upon the negligence of Sam Plank, and his testimony was clearly material under the circumstances. However, his deposition had been taken and he had testified in a previous trial of the case. The plaintiff offered to admit the deposition or the previous testimony of the witness. Defendants declined this offer after the court had announced that such testimony might be introduced. The motion was not made upon affidavit, as provided by Sec. 668, Title 12, O.S.1941, which also provides in part as follows: 'If thereupon, the adverse party will consent that on the trial the facts, alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence.'

In Schuman's, Inc., v. Missy Dress Co., 172 Okl. 211, 44 P.2d 862, this court announced the rule in the third syllabus as follows: 'An application for a continuance on the ground of absence of evidence or witness, under section 397, O.S.1931, invokes the exercise of the sound and reasonable discretion of the trial court, and where the adverse party consents that, on the trial of the case, the facts alleged in the affidavit for the continuance shall be read and treated as the deposition of the absent witness, the rule of discretion ceases to operate and the continuance should not be granted.'

The offer of the...