Maryland Cas. Co. v. Ballard
| Decision Date | 13 September 1927 |
| Docket Number | 17279. |
| Citation | 259 P. 528,126 Okla. 270,1927 OK 275 |
| Parties | MARYLAND CASUALTY CO. v. BALLARD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In the absence of special findings, a trial court is without authority to render judgment notwithstanding the verdict unless the same is warranted by the pleadings. Barnes v Universal Tire Protector Co., 63 Okl. 292, 165 P. 176.
The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court in the exercise of a sound judicial discretion. would be compelled to set aside a verdict in opposition to it. Moore v. First Nat. Bank of Iowa City, 30 Okl. 623 121 P. 626.
Plaintiff furnished defendant's official bond upon a written covenant that defendant would pay plaintiff any and all loss costs, charges, suits, damages, counsel fees, and expenses incurred or put to in consequence of having executed such bond. Held, that in an action by plaintiff to recover such expenses plaintiff, under the terms of such covenant and the provisions of section 5177, C. O. S. 1921, relating to Interpretation of Indemnity, was entitled to recover such alleged expenses if the same actually were incurred in good faith and in the exercise of reasonable discretion, and that plaintiff was entitled to have such issue submitted to the jury without embodying in the instructions thereon the question whether the principal employed sufficient counsel to defend principal and surety, and whether such expenses were necessary on the part of the surety.
Additional Syllabus by Editorial Staff.
In surety's action against principal on latter's contract to reimburse surety for expenses incident to surety bond, answer held sufficient to raise issue rendering refusal of motion for judgment notwithstanding verdict for defendant, under Comp. St. 1921, § 682, proper.
Where surety in action on official bond, in which surety waived jurisdiction, under Comp. St. 1921, §§ 201, 5177, 5449, defended case in county other than that in which principal resided, judgment against surety was only presumptive evidence of liability of principal.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Jefferson County; W. M. Pugh, Judge.
Action by the Maryland Casualty Company against W. J. Ballard to recover attorney's fees, court costs, and the amount of a certain judgment paid and incurred by the plaintiff as surety on the official bond of the defendant. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
Ross & Thurman and Samuel J. Clay, all of Oklahoma City, for plaintiff in error.
Bridges & Vertrees and Green & Pruet, all of Waurika, for defendant in error.
Maryland Casualty Company originally filed this action in the district court of Jefferson county, Okl., to recover of and from W. J. Ballard the sum of $1,370 for moneys and sums paid out and expended by it for attorney's fees, expenses, and a certain judgment recovered against it as surety on the official bonds of the defendant, W. J. Ballard, who was sheriff of Jefferson county, Okl.
The first four counts or causes of action set forth in plaintiff's petition were for the recovery of attorney's fees and expenses alleged to have been paid out and expended in defense of certain suits and actions filed against it, as surety, and W. J. Ballard, the principal, on the official bonds of the defendant, while the last count or cause was to recover attorney's fees and expenses, together with the amount and sum of $550 paid out in satisfaction of a certain judgment rendered against it as surety on the official bond of the defendant in a certain action in Oklahoma county, Okl., in which last action the defendant, principal on said bond, was not a defendant.
As a part of plaintiff's petition copies of the official bonds which plaintiff signed as surety, together with defendant's application for such bonds and the written covenant, agreement, or indemnity of the defendant to plaintiff, were attached, which covenant, among other provisions, contains the following:
"* * * And do bind myself, my heirs, executors and administrators to pay said company any and all losses, costs, charges, suits, damages, counsel fees, and expenses of whatever kind or nature, which said company shall or may for any cause, sustain or incur, or be put to, for, or by reason or in consequence of said company's having entered into or executing said bond or any renewal or continuation thereof. * * *"
The defendant filed a general demurrer to plaintiff's petition, which was overruled, and thereafter an answer was filed containing a general denial except an admission that defendant was such sheriff and the execution of the bond mentioned, and further setting forth in said answer that the defendant procured attorneys at his own expense as to the first four causes of action mentioned in plaintiff's petition, and defended such actions at his own expense, and if plaintiff took any action in said causes it was not at the request of defendant and was entirely unnecessary. As to the fifth cause of action in plaintiff's petition, the answer alleged that such suit mentioned in plaintiff's fifth cause of action was filed in a court which had no jurisdiction of the subject-matter, and if any judgment was rendered against defendant, Ballard, in said cause the same was void and of no effect unless his attorneys, by collusion or otherwise, induced him to submit himself to the jurisdiction of said court, and if any judgment was rendered against him it was by reason of the fact, if he was a party, that he was not properly or skillfully represented. And, further answering, that the matters mentioned in plaintiff's petition occurred and were alleged to have occurred throughout a period of several years during which time no demand was ever made upon defendant for the payment thereof; that plaintiff well knew defendant was diligently defending any and all actions brought against him and his said surety; that plaintiff never suffered any damage or hurt from any action mentioned in said petition except the suit mentioned in plaintiff's fifth cause of action, which was brought in a court having no jurisdiction of the subject-matter or of the defendant.
Apparently no further pleadings were had or made and upon the issues thus joined a trial was had before a jury. The plaintiff submitted requested instructions asking a directed verdict in its favor upon each and all causes, which instructions were denied. A general verdict was rendered in favor of the defendant upon all causes and judgment rendered accordingly. Motion for judgment notwithstanding the verdict was filed by the plaintiff, which was overruled, and its motion for a new trial setting forth therein, among other things, error of the court in refusing plaintiff's requested instructions, and error of the court in giving to the jury, over objection of the plaintiff, instructions Nos. 5 and 6, which motion for new trial was overruled, and plaintiff brings the action on appeal to this court. The parties will be referred to as they appeared below.
Plaintiff's brief is largely devoted to the argument that the trial court, as well as this court, should direct and enter a judgment in its favor; that the trial court erred in refusing its (plaintiff's) requested instructions for judgment, and in overruling motion for judgment notwithstanding the verdict of the jury. As to the latter proposition, i. e., the overruling of plaintiff's motion for judgment notwithstanding the verdict, we find such motion not warranted, and no error in the trial court's overruling the same.
Section 682, C. O. S. 1921, is as follows:
"Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party."
In construing this statute, this court has held that a trial court is without jurisdiction, in the absence of special findings, to enter judgment non obstante veredicto, unless the same is warranted by the pleadings. Barnes v. Universal Tire Protector Co., 63 Okl. 292, 165 P. 176; Stapleton Motor Sales Co. v. Oates, 109 Okl. 173, 235 P. 513, and cases there cited.
The defendant's answer in the case at bar is sufficient to raise an issue, and plaintiff would not be entitled to judgment on the pleadings. Vaughn v. Ryan, 97 Okl. 226, 223 P. 344. Therefore, under the statutes and the decisions of this court, plaintiff herein was not entitled to judgment notwithstanding the verdict.
Plaintiff insists that it was entitled to, in the trial court, and now, a judgment in its favor, and in its brief and oral argument sets forth considerable evidence introduced on behalf of plaintiff. The rule and this court has said:
See, also, City of Wynnewood v. Cox, 31 Okl. 563, 122 P. 528, Ann. Cas. 1913E, 349.
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