Oklahoma Ry. Co. v. Sandford

• Decision Date: 28 April 1953
• Docket Number: No. 35193,35193
• Citation: 1953 OK 394,258 P.2d 604
• Parties: OKLAHOMA RY. CO. v. SANDFORD.
• Court: Oklahoma Supreme Court

Page 604

258 P.2d 604

OKLAHOMA RY. CO. v. SANDFORD.

No. 35193.

Supreme Court of Oklahoma.

April 28, 1953.

Rehearing Denied June 30, 1953.

Application for Leave to File Second Petition for Rehearing

Denied July 14, 1953.

Syllabus by the Court.

1. Where plaintiff's evidence fails to establish that defendant's employee at the time and place (as disclosed in the opinion) was acting within the scope of his employment, it is the duty of the court to sustain defendant's demurrer to plaintiff's evidence or defendant's request for an instructed verdict in its behalf.

2. A bus company, as a general rule, is not liable for an unlawful assault and battery committed by its bus driver upon the person of another, not a passenger, where at the time of the assault and battery the bus driver left his bus, at a place other than an authorized stop, proceeded to an automobile in which plaintiff was sitting, engaged in an argument with plaintiff as to whether he was intoxicated and detained plaintiff for his arrest by police.

F. M. Dudley and Richardson, Shartel & Cochran, Oklahoma City, for plaintiff in error.

Howard K. Berry, Oklahoma City, for defendant in error.

O'NEAL, Justice.

Plaintiff below, W. R. Sandford, recovered a judgment against the Oklahoma Railway Company, a corporation, based upon allegations that A. L. Lambert, a bus driver of the defendant company, committed an assault and battery upon plaintiff during the course of Lambert's employment with and as the agent of the defendant Oklahoma Railway Company.

At the close of plaintiff's evidence, defendant interposed a demurrer upon the ground that plaintiff's proof did not sustain the allegations of his petition, nor constitute a cause of action for the reason that the proof failed to show that the acts and conduct of the bus driver, Lambert, were done and performed by him in the course of his employment as the bus operator and agent of the defendant company.

At the close of all of the evidence, defendant moved for a directed verdict upon the same grounds as recited in its demurrer under plaintiff's evidence. Both the demurrer and motion for a directed verdict were overruled by the trial court, and exceptions saved by the defendant. In our view of the case we hold that the court erred in its disposition of the demurrer and motion for the directed verdict.

On the evening of December 4, 1948, plaintiff intended to pick up a lady employed at McEntees Jewelry located on Main Street in Oklahoma City. As a rule, the store closed at 6:00 p. m., and the lady would usually leave her place of employment between the hour of 6:00 and 6:30. Plaintiff, while awaiting the lady's arrival in front of the store, had driven his automobile around the square of Main, Robinson, Grand and Harvey Streets a number of times immediately prior to the assault and battery complained of. As plaintiff approached the southwest corner of Main and Robinson Streets, upon his final circuit, defendant's bus moved into a position to obstruct plaintiff's intended turn to the right for entry on Robinson Avenue. At this point Lambert having stopped his bus, which partly obstructed plaintiff's movement, got out of the bus, went to the south or right door of plaintiff's automobile and opened the door and ordered plaintiff out of his car accompanied with a threat, according to one witness, that he would beat hell out of him; that in attempting to pull plaintiff out of the automobile Lambert struck plaintiff several blows, one of which landed under plaintiff's left eye inflicting a wound requiring surgery. A witness for plaintiff testified that he was standing on the corner of Main and Robinson Streets as Lambert brought his bus in a position to prevent plaintiff's forward movement; that Lambert got out of the bus and opened the car door and said: 'The s_____ b_____ is drunk.' and requested that the bystanders call a policeman; that Lambert attempted to drag plaintiff out of the car and in the attempt pulled the right sleeve out of plaintiff's overcoat. The witness stated that Lambert at the time struck plaintiff several blows.

Prior to the trial plaintiff had taken the deposition of Lambert, excerpts of which plaintiff read to the jury. The substance of this testimony was that Lambert was the driver of the bus on December 4, 1948, which the altercation occurred between him and plaintiff; that Lambert hit plaintiff in the face and that he did so intentionally and not accidentally.

After the trial court overruled defendant's demurrer to the foregoing proof, defendant read Lambert's deposition to the jury in its entirety. Lambert testified that he first observed plaintiff at the corner of Main and Walker Streets as plaintiff apparently was turning off of Walker east on Main at which point plaintiff cut between Lambert and the bus stop on said corner; that Lambert stopped to keep from hitting plaintiff's car. After plaintiff pulled away from the bus zone at Walker and Main, he proceeded east on Main Street. When plaintiff's car reached a point about half way between Walker and Hudson Streets he brought his car to a stop immediately in front of the bus without any apparent reason, as the traffic was moving forward at the time. Lambert sounded his horn but plaintiff didn't move forward so Lambert was compelled to back his bus and go around plaintiff's car. When plaintiff's car approached Main and Hudson, plaintiff indicated he was going to turn south on Hudson, and after partly completing the turn he pulled his car back onto Main and into the area of the bus zone on Main and Hudson. Lambert again sounded his horn but plaintiff made no response to it and Lambert had difficulty in getting his bus out of the zone. Plaintiff stopped his car between Hudson and Harvey, some distance back from the intersection, double parking, so the bus was compelled to stop, sound its horn and await plaintiff's pleasure to proceed. As the bus approached Harvey Street, plaintiff's car, after traveling near the center of Main Street, suddenly cut in front of the bus causing Lambert to come to a sudden stop to avoid colliding with plaintiff's car. When the bus and automobile reached a point near Main and Robinson, the bus pulled over toward the curb blocking in part plaintiff's forward movement. Lambert then left his bus, walked over to plaintiff's car, opened the right-hand door and asked plaintiff if he was drunk. Plaintiff responded that he was not drunk. Lambert smelled alcohol upon plaintiff and asked the bystanders to call the police. Lambert admitted striking plaintiff, which he said occurred after plaintiff applied an opprobrious remark to him. The police took plaintiff in charge and conducted him to the police station where he was charged with driving an automobile while under the influence of alcoholic beverages. A policeman testified that plaintiff was under the influence of alcohol. Another witness testified that pla...