Kramer v. Nichols-Chandler Home Bldg. & Brokerage Co.

• Decision Date: 09 October 1923
• Docket Number: Case Number: 11666
• Citation: 93 Okla. 227,220 P. 338,1923 OK 766
• Parties: KRAMER, Gdn., v. NICHOLS-CHANDLER HOME BUILDING & BROKERAGE CO. et al.
• Court: Oklahoma Supreme Court

1923 OK 766

220 P. 338

93 Okla. 227

KRAMER, Gdn., v. NICHOLS-CHANDLER HOME BUILDING & BROKERAGE CO. et al.

Case Number: 11666

Supreme Court of Oklahoma

Decided: October 9, 1923

Syllabus

¶0 1. Trial--Motion for Directed Verdict--Effect. Where the evidence is conflicting, and the court is asked to direct a verdict, the evidence favorable to the moving party must be eliminated from consideration and wholly disregarded, leaving for consideration only that evidence favorable to the party against whom the motion is leveled.

2. Same--Negligence -- Action for Personal Injuries. The court may not direct a verdict in a personal injury suit for damages where negligence is alleged, if there is any evidence reasonably tending to prove the negligence alleged and the resulting injury.

3. Same--Right to Directed Verdict. It is only when the evidence, with all the inferences the jury could reasonably draw therefrom, will be insufficient to support a verdict for the plaintiff that the court is authorized to direct a verdict for the defendant.

4. Master and Servant--Action Against Master for Injuries Caused by Servant --Imputed Negligence-- Evidence. When the plaintiff has suffered injury from the negligent management of an automobile, it is sufficient prima facie evidence that the negligence was imputable to a defendant to show that he was the owner of the automobile and that it was, at the time of the accident, being driven by an employe of such defendant, without proving affirmatively that such driver was at the time engaged in some business or on some mission in connection with the business of the employer, or acting within the scope of his authority.

Hayson & Lukenbill and W. P. Kelly, for plaintiff in error.

Everest, Vaught & Brewer, for defendants in error.

RAY, C.

¶1 This action is to recover for personal injuries suffered in a collision between a motorcycle driven by the plaintiff and an automobile driven by the defendant W. D. Palmer, alleged to have been caused by the negligence of the driver of the automobile. The defendant Nichols-Chandler Home Building & Brokerage Company, a corporation, was the owner of the automobile and the employer of Palmer. It is alleged that Palmer was at the time engaged in some business connected with the performance of his duties in connection with his employment, and his negligence is imputed to the defendant corporation. The court instructed the jury to return a verdict for the defendant corporation, and from the judgment rendered on the instructed verdict, the plaintiff appeals. The defendant company, by its answer, admits the accident, and that plaintiff was injured, but denies that Palmer was at the time in its employ or engaged in any business connected with the company, but says that Palmer took the automobile without its knowledge or consent, and was driving the car on some mission of business or pleasure of his own, denies any negligence on the part of Palmer, and says the accident was caused by the negligence of the plaintiff without any fault on the part of Palmer, the driver of the automobile. It seems to be the settled rule in this state that the trial court should not direct a verdict where it is necessary to weigh the evidence to determine where the preponderance lies ( Oklahoma Automobile Co. v. Goulding, 73 Okla. 292, 176 P. 400): that where the evidence is conflicting and the court is asked to direct a verdict, the evidence favorable to the moving party must be eliminated from consideration and wholly disregarded, leaving for consideration only that evidence favorable to the parties against whom the motion is leveled ( Kelley v. Hamilton, 78 Okla. 179, 189 P. 535); that the court may not direct a verdict in a personal injury suit for damages where negligence is alleged, if there is any evidence reasonably tending to prove the negligence alleged and the resulting injury ( Ferris v. Jones, 78 Okla. 154, 189 P. 527); that when the defendant asks for an instructed verdict the evidence must be considered in its aspects most favorable to the plaintiff's contention ( Gregory v. Harper et al., 51 Okla. 419, 152 P. 70); that it is only when the evidence with all the inferences the Jury could reasonably draw therefrom will be insufficient...