Kelly v. Employers Cas. Co.

• Decision Date: 21 February 1950
• Docket Number: No. 33441,33441
• Parties: KELLY v. EMPLOYERS CASUALTY CO. et al.
• Court: Oklahoma Supreme Court

Page 925

214 P.2d 925

202 Okla. 437

KELLY v. EMPLOYERS CASUALTY CO. et al.

No. 33441.

Supreme Court of Oklahoma.

Feb. 21, 1950.

Syllabus by the Court.

1. It is the duty of a trial court upon its own motion to properly instruct the jury upon the fundamental issues formed by the pleadings and the evidence, and a failure to do so constitutes reversible error. An issue in a case is fundamental when its correct determination, under proper instructions, will be conclusive of the rights of the parties.

2. Where in a highway collision tort action the plaintiff alleges that the driver of defendant's truck was the agent of the defendant and acting within the scope of his authority at the time of the collision, a general unverified denial admits the agency and the scope of authority (12 O.S.1941, Sec. 286), which are fundamental to the right of the plaintiff to recover, and it is reversible error to instruct the jury that the burden is upon the plaintiff the court the allegations of the petition the court having detailed to the jury plaintiff's allegations. Held further: that this error was not cured by an instruction: 'That if you find and believe from a fair preponderance of the evidence, facts and circumstances in this case * * * that defendant's truck being driven by Jesse F. Doggett, defendant's agent and employee and in the course of his employment carelessly and negligently ran into plaintiff's automobile; * * * then you should return a verdict in favor of the plaintiff * * *.'

3. It is error to submit to the jury the question of contributory negligence where no evidence tending to show contributory negligence has been introduced by plaintiff or defendant. Held: the instruction given on contributory negligence in this case was erroneous and probably prejudicial and therefore constituted reversible error.

Ash & Bailey, Cordell, for plaintiff in error.

Cheek, Cheek & Cheek, Oklahoma City, Meacham, Meacham, Meacham & Meacham, Clinton, for defendants in error.

ARNOLD, Vice Chief Justice.

On October 12, 1943, Mrs. Jessie Kelly was driving to Oklahoma City from her home near Canute and as she approached the bridge across the Canadian River on West 10th Street ten miles west of Oklahoma City, she saw another car approaching the bridge from the east end and knowing that the two cars would meet on the bridge she decreased the speed of her car from approximately 35 miles per hour to 25 miles per hour and after meeting and passing the approaching car on the bridge her car was struck in the rear by 'something' and the impact rendered her unconscious and she sustained numerous serious injuries the results of which have persisted since that time. By reason of her unconsciousness as a result of the striking of her automobile she was unable as a witness upon the trial of the case to state what struck her or how her injuries were occasioned.

On April 27, 1945, she commenced this action against the defendants H. V. Jones and the Employers Casualty Company, a corporation, as the insurance carrier of H. V. Jones for damages resulting from the injuries suffered by her on the 12th day of October, 1943. The pertinent allegations of her petition relating to the nature of the collision and its cause read as follows:

'Plaintiff states that while driving, as aforesaid, her car was struck in the rear by a 1941 Model Chevrolet one and one-half (1 1/2) ton truck with semi-trailer attached, which belonged to the defendant, H. V. Jones, and which was being driven in the course of his employment by one Jesse F. Doggett, an agent and employee of Jones * * *.

'Plaintiff avers that said collision was proximately caused by the carelessness and negligence and want of due care on the part of the defendant, H. V. Jones, and his agent and employee, Jesse F. Doggett, in the operation and driving of said truck, * * *.'

For his answer defendant H. V. Jones denied generally and specifically the allegations of plaintiff's petition and as affirmative defenses alleged unavoidable accident based upon the slowing down of plaintiff's car immediately before the collision and contributory negligence based upon the failure of plaintiff to give proper warning to those following her upon the highway of her intention to decrease the speed of her car.

The defendant insurance company answered by general denial and asserted that under its policy of insurance it was not liable to the plaintiff unless the defendant Jones is liable and alleged the nonliability of Jones for the reasons set forth in his answer. The company also pleaded contributory negligence on the part of plaintiff. Upon trial of the case wherein defendants offered no evidence there was a general verdict in favor of defendants upon which judgment was entered and plaintiff appeals.

Her petition in error alleges error of the trial court in the giving of four instructions numbered 2, 11, 9 and 10 to which instructions and the giving thereof plaintiff at the time duly excepted. Plaintiff's argument on these specifications of error is presented in her brief under two propositions as follows:

'1. The court erred in giving instructions which placed upon the plaintiff the burden of proving issues admitted by defendants' answers.

'2. The court erred in giving instructions upon issues not raised or presented by the evidence.'

The first proposition is predicated on and embraces the alleged errors of the trial court in giving instructions 2 and 11. In instruction No. 2 the court told the jury that 'the burden is upon the plaintiff to prove the allegations of the petition by a fair preponderance of the evidence, and unless the plaintiff has so proven the allegations of the petition by a fair preponderance of the evidence you will find for the defendants upon the petition of plaintiff.'

It is the contention of the plaintiff that this instruction was erroneous in that by the general denials of the defendants they admitted the allegation of agency and since plaintiff offered no evidence in support of her allegation of agency this instruction placed an undue burden upon her and misled the jury as to the sufficiency of the allegation and proof of agency. By instruction No. 11 the jury was told that if it found and believed from a fair preponderance of the evidence that 'plaintiff was driving an automobile east on a public highway in a careful and prudent manner; that defendant's truck being driven by Jesse F. Doggett, defendant's agent and employee and in the course of his employment carelessly and negligently ran into plaintiff's automobile; that defendant was negligent in that the truck was being driven at an excessive rate of speed, with defective brakes or the driver failed to apply the brakes; that as a result of said collision plaintiff received injuries to her person and was damaged thereby; that the negligence of defendant's driver was the proximate cause of the injury; that the defendant's truck was being operated under a certificate of necessity issued by the Corporation Commission; that defendant, Employers Casualty Company, a Corporation, carried liability insurance on said truck for injuries and damage to persons, then you should return a verdict in favor of the plaintiff and against the defendants.' Plaintiff's contention with respect to this instruction is that it was erroneous in that the question of Doggett's agency is a fact left for the jury to determine, but that under the pleadings in the case this was a simple statutory question of law which should have been determined by the court. On this point plaintiff relies upon the language of 12 O.S.1941 § 286, which reads: 'In all actions, allegations of the execution of written instruments and endorsements 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.'

As above stated, the unconsciousness of plaintiff resulting from the collision here involved prevented her knowing what struck the rear end of her automobile and as a result her testimony upon the witness stand in her own behalf throws no light upon this question. Such being plaintiff's situation upon the trial of the case, it is manifest that it was especially important to her and to her rights in the litigation that the jury should...