Russell-Locke Super-Service, Inc. v. Vaughn
| Decision Date | 29 January 1935 |
| Docket Number | Case Number: 23816 |
| Citation | 1935 OK 90,40 P.2d 1090,170 Okla. 377 |
| Parties | RUSSELL-LOCKE SUPER-SERVICE, Inc., et al v. VAUGHN. |
| Court | Oklahoma Supreme Court |
¶0 1. Pleading--Alleged Agency of Employees Admitted by Unverified General Denial of Employer.
When the plaintiff alleges in his petition that K. and S. were servants and employees of the defendant, a corporation, and the corporation's answer to the petition is an unverified general denial, the agency of K. and S. is admitted and the plaintiff is not required to prove agency.
2. Master and Servant--Liability for Acts of Servant--Sufficiency of Evidence to Withstand Demurrer.
Where the agency of a servant is admitted by the pleadings and the evidence of the plaintiff shows that the acts of the servant complained of were committed in the furtherance of the master's business, a demurrer to the evidence of the plaintiff should be overruled.
3. Same--Liability of Master for Injuries Inflicted by Servant in Fight While Acting in Course of Employment.
The master is liable for the acts of his servants when the acts complained of are committed in the furtherance of the master's business, and when R., owner of a corporation, engaged in the sale of storage batteries, instructs his servant S. to go to V.'s place of business and collect for a battery or bring the battery to R.'s place of business, and on S. going to V.'s place of business and taking V.s Battery a fight ensued and V. was injured, held, that S. was acting for his master and in the course of his master's employment and R., a corporation, is responsible for the acts of S.
4. Appeal and Error--Objection That Verdict Did not State Nature of Damages Awarded--Failure to Ask That Jury Be Instructed to Indicate Separate Amounts Awarded for Compensatory Damages and Exemplary Damages.
When an instruction is given by the court on exemplary damages, the defendant should ask for an instruction for interrogatories to be submitted to the jury showing the amount of compensatory damages and the amount of exemplary damages separately in their verdict, and if no such request is made a complaint against the form of the verdict which does not state the nature of the damages found to be due, made for the first time in defendant's brief on appeal, comes too late.
5. Trial--Refusal of Requested Instruction Covered in General Instructions.
In the trial of a cause, if the trial court gives the law applicable to the case in its instructions, it is not error to refuse to give an instruction on a particular point covered in the general instructions already given.
6. Appeal and Error--Excessiveness of Verdict for Personal Injuries.
In an action for damages for personal injuries, before a verdict of the jury will be set aside as excessive, it must appear that the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly shows the jury have been actuated by passion, partiality, prejudice, or corruption.
Appeal from District Court, Oklahoma County; Dennis H. Wilson, Special Judge.
Action by V. J. Vaughn against the Russell-Locke Super-Service, Incorporated, and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.
Lillard & Gibbons and Elwyn S. Gibson, all of Oklahoma City, for plaintiff in error.
Sanford Babcock, of Oklahoma City, for defendant in error.
¶1 This case originated in the district court of Oklahoma county, Okl., by V. J. Vaughn on the 6th day of April, 1931, filing his petition against Russell-Locke Super-Service, Inc., L. W. Lewis, and Lewis Saddler, defendants. A judgment was had in favor of the plaintiff, and the defendant Russell-Locke Super-Service, Inc., appeals as plaintiff in error, making V. J. Vaughn defendant in error. The parties in this opinion will be referred to as they appeared in the lower court for convenience.
¶2 The facts involved in this case as set out in plaintiff's petition are as follows: On March 16, 1931, the plaintiff was the owner of a storage battery in his delivery truck, the delivery truck being parked in front of his place of business at 1237 East Twentieth street in Oklahoma City, Okl. Russell-Locke Super-Service, Inc., was a corporation engaged in the sale and servicing of automobile storage batteries. The defendant had sold to the Ritz Cleaning Company, previous to March 16, a storage battery. The plaintiff, V. J. Vaughn, worked for the Ritz Cleaning Company at the time the defendant sold the battery to the Ritz Cleaning Company. Some time after the sale was made, the plaintiff opened up his own place of business at the place above stated. The Ritz Cleaning Company never, at any time, paid for the battery which was purchased.
¶3 The defendant Russell-Locke Super-Service, Inc., thought that the plaintiff had their battery in his car on the date of the difficulty. Mr. Russell, one of the owners and managers of the Russell-Locke Super-Service, Inc., instructed his servant Lewis Saddler and another servant to go out to the plaintiff's place of business and get pay for the battery sold to the Ritz Cleaning Company or bring the battery back to the defendant's place of business. Saddler and Kelly drove up to the plaintiff's place of business, and, as evidence shows, without making any request of the plaintiff to look at the battery and identify it, started to take the plaintiff's battery out of his car. The plaintiff remonstrated and pulled Saddler out of plaintiff's car and a fight ensued; the evidence is conflicting as to the instruments used in the fight. The plaintiff was injured by Saddler-had a broken nose and other lacerations on the face. While Saddler and the plaintiff were fighting, Kelly took the battery out of plaintiff's car and placed it in the defendant's car and took the battery to the defendant Russell-Locke's Super-Service, Inc., garage.
¶4 Some two or three hours after this happened, the Russell-Locke Super-Service Company, Inc., returned the battery to the plaintiff's place of business for the reason that they did not know whether it was their battery or not.
¶5 On these facts the plaintiff filed his petition asking for $6,000 compensatory damages, and $2,000 exemplary damages. The defendant filed its general denial, and in addition to the general denial filed by the defendant, they alleged that if the plaintiff was injured it was caused by his own negligence in negligently and carelessly bringing about an altercation and engaging in a fight without any provocation. This answer was unverified, and on these issues the case was submitted and tried to a jury on the 27th day of October, 1931, and a verdict was returned by the jury in favor of the plaintiff and against the Russell-Locke Super-Service, Inc., in the sum of $1,000. This was a general verdict and did not set out whether the verdict was for compensatory damages or for exemplary damages.
¶6 The defendant Russell-Locke Super-Service, Inc., appeals from said verdict and judgment, and in its brief argues three propositions why the verdict and judgment should be set aside by this court.
¶7 The first proposition is as follows: "The court erred in overruling the demurrer of this defendant to the evidence of the plaintiff and in refusing to give defendant's requested instruction number one, for a directed verdict for this defendant."
¶8 Second proposition: '
¶9 Third proposition: "The court erred in refusing to give the defendants requested instruction number three, in words as follows: 'You are instructed that the plaintiff is not entitled to recover any punitive damages as against the defendant Russell-Locke Super-Service, Inc."'
"The court erred in giving plaintiff's fourth requested instruction, in words as follows: 'You are further instructed that if you find from the evidence that there has been malice and misconduct on the part of the defendants or that the defendants have acted in such gross disregard of the rights of the plaintiff as to amount to constructive malice, then punitive damages may be assessed against the defendants and you are instructed that if you believe from the evidence that the defendants herein willfully, wrongfully and maliciously, and without regard to the rights of the plaintiff, or acting in such gross disregard of his rights, as to amount to constructive malice, forcibly took the property of the plaintiff from his possession against his will and without his consent, then you may assess punitive damages against the defendant, or if the jury believes from the evidence that the plaintiff herein was wontedly,...
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