Holmes v. Chadwell
| Decision Date | 11 September 1934 |
| Docket Number | Case Number: 22420 |
| Citation | 36 P.2d 499,169 Okla. 191,1934 OK 417 |
| Parties | HOLMES v. CHADWELL. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error -- Review -- Insufficiency of Evidence--Waiver of Demurrer to Plaintiff's Evidence and Failure to Move for Directed Verdict.
If a defendant, after his demurrer to the evidence of plaintiff has been overruled, does not stand upon the demurrer, but puts in his evidence, he waives the demurrer, and, if he does not move for a directed verdict after the parties have finally rested, he cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiff.
2. New Trial--Essentials of "Newly Discovered Evidence."
A rule of wide recognition regarding the granting of new trials on the ground of "newly discovered evidence" exacts that the evidence fulfill the following requirements: (1) It must be such as will probably change the result; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be to merely impeach or contradict the former evidence.
3. Master and Servant--Exemplary Damages Recoverable Against Master for Wrongful Acts of Servant Irrespective of Ratification.
In this jurisdiction it is not necessary to show authorization or ratification by a master of the wrongful acts of his servant to justify a verdict for punitive or exemplary damages against the master.
Appeal from Court of Common Pleas, Tulsa County; Wm. N. Randolph, Judge.
Action by A. B. Chadwell against O. B. Holmes, doing business as Success Motor Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Leahy & Brewster, for plaintiff in error.
Samuel A. Boorstin and Frank Field, for defendant in error.
OSBORN. J.
¶1 This action was commenced by A. B. Chadwell against C. B. Holmes, doing business as the Success Motor Company, in the court of common pleas of Tulsa county, as an action in damages. The cause was tried to a jury and a verdict rendered in favor of plaintiff. From a judgment thereon, defendant has appealed.
¶2 Plaintiff alleges that on April 17, 1930, he entered into certain negotiations with defendant for the purchase of a 1930 model Studebaker Regal Commander sedan, and that through certain false and fraudulent representations by the agents and employees of defendant he was induced to enter into a contract for the purchase of the automobile; that said agents and employees represented that the automobile was the latest model manufactured by the Studebaker Company and was a new car and had never been run. After the purchase of the automobile, plaintiff discovered that it was not the latest model, but was an obsolete model, and Was not a new car, but was a second-hand car. The prayer of the petition was for $ 1,000 actual damages and $ 1,000 exemplary damages. The purchase price of the automobile was $ 1,974. There was a general verdict by the jury for $ 600.
¶3 Defendant challenges the sufficiency of the evidence offered by plaintiff to sustain the recovery. In this connection, after plaintiff's evidence was introduced, defendant lodged a demurrer to the evidence, which was overruled; thereafter defendant introduced his evidence and plaintiff introduced his rebuttal evidence, and the cause was submitted to the jury. Defendant did not move for a directed verdict after all the evidence was introduced. It is not charged that the verdict was excessive. In the case of Marland Refining Co. v. Harrel, 167 Okla. 548, 31 P.2d 121, it is said:
"If a defendant, after its demurrer to the evidence of the plaintiff has been overruled, does not stand upon the demurrer, but puts in its evidence, it waives the demurrer, and, if it does not move for a directed verdict after the parties have finally rested, it can. not urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiff."
¶4 See, also, Seidenbach's, Inc., v. Muddiman, 155 Okla. 61, 7 P.2d 471; Local Building & Loan Ass'n v. Hudson-Houston Lbr. Co., 150 Okla. 44, 3 P.2d 156; Watson v. Doss, 151 Okla. 132, 3 P.2d 159; Stanfield v. Lincoln, 150 Okla. 289, ...
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...its employees if the employee is acting within the scope of his or her employment. Russell-Locke, 40 P.2d at 1094; Holmes v. Chadwell, 169 Okl. 191, 36 P.2d 499, 500 (1934) (employer may be liable for punitive damages if the employee was acting within the scope of his employment even if the......
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