Ft. Smith & W. R. Co. v. Solsberger

• Decision Date: 22 April 1913
• Citation: 131 P. 1078,38 Okla. 40,1913 OK 257
• Parties: FT. SMITH & W. R. CO. v. SOLSBERGER ET AL.
• Court: Oklahoma Supreme Court

131 P. 1078

38 Okla. 40, 1913 OK 257

FT. SMITH & W. R. CO. v. SOLSBERGER ET AL.

Supreme Court of Oklahoma

April 22, 1913

Syllabus by the Court.

Where the petition positively alleges the appointment and authority of an agent, and the reply thereto is an unverified general denial, the allegations of appointment and authority of the agent are taken to be true, and evidence tending to dispute such allegation is properly excluded.

Error from the County Court of Okfuskee County; T. T. Doyle, Judge.

Action by John Solsberger and others against the Ft. Smith & Western Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

C. E. & H. P. Warner, of Ft. Smith, Ark., and J. B. Patterson, of Okemah, for plaintiff in error.

W. A Huser and C. B. Conner, both of Okemah, for defendants in error.

KANE J.

This was an action commenced by the defendants in error plaintiffs below, against the plaintiff in error, defendant below, to recover a certain sum alleged to be due the plaintiffs for services rendered by them in attending an injured employé of the defendant, in pursuance of an oral contract made by a section foreman of the defendant. Upon trial to a jury there was a verdict for plaintiffs, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

The petition contained an allegation to the effect that the section foreman was the agent of the defendant, with full authority to bind the railway company in the manner stated in the petition. The answer was an unverified general denial. Upon trial the defendant attempted to introduce evidence tending to limit the scope of the section foreman's authority, as alleged in the petition; whereupon, an objection was sustained to the introduction of such evidence upon the ground that by virtue of section 5648 of the Compiled Laws of Oklahoma 1909 the question of the appointment and authority of the agent must be taken as true. This objection was well taken. The statute provides that "In all actions, allegations of the execution of written instruments and indorsements thereon of the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." The statute itself seems to...