Starmer v. Mid-West Chevrolet Corp.

• Decision Date: 12 November 1935
• Docket Number: 24280.
• Citation: Starmer v. Mid-West Chevrolet Corp., 51 P.2d 786, 1935 OK 1116, 175 Okla. 160 (Okla. 1935)
• Parties: STARMER v. MID-WEST CHEVROLET CORPORATION et al.
• Court: Oklahoma Supreme Court

51 P.2d 786

175 Okla. 160, 1935 OK 1116

STARMER v. MID-WEST CHEVROLET CORPORATION et al.

No. 24280.

Supreme Court of Oklahoma

November 12, 1935

Rehearing Denied Dec. 3, 1935.

Syllabus by the Court.

1. Under section 533, O.S. 1931, a party desiring to have a judgment of the district court reviewed by the Supreme Court may make a case containing a statement of so much of the proceedings and evidence or other matters in the action as may be necessary to present the error complained of to the Supreme Court.

2. It is not necessary that the entire record be included in the case-made, but so much thereof as is required by section 533 O.S. 1931, must be included therein, and there must be an averment therein of the inclusion thereof.

3. It is error to instruct a verdict for the defendant if the evidence favorable to plaintiff, taken as true, with all reasonable inferences to be drawn therefrom, fairly tends to prove plaintiff's case or to show prima facie right of recovery. Allis Chalmers Co. v. Lamb (Okl.Sup.) 49 P.2d 1071.

4. Where the question of agency is an issue, it is a settled rule that the question of agency and the scope and extent of the agent's authority are to be gathered from all the facts and circumstances in evidence and are to be determined either by the jury or the court as a trier of fact.

5. In a suit based on damages arising from a conspiracy, the combination or conspiracy may be proved by evincing a concurrent knowledge and approbation in the persons conspiring, of each other's acts; and it is usually done by proof of the separate acts of several persons concentrating in the same purpose or particular object. 5 R.C.L. 1103, 1104.

6. It is a settled rule in this jurisdiction that a demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove and all inferences and conclusions that may be reasonably and logically drawn from the evidence; but when this has been done and the evidence favorable to the demurrant has been treated as withdrawn, yet the evidence is insufficient as against the demurrant, then such demurrer is properly sustained.

7. Where a written contract does not express the entire agreement between the parties, extrinsic evidence is admissible with reference to those matters not included in such contract.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by W. B. Starmer against the Mid-West Chevrolet Corporation and others, to recover damages resulting from an alleged conspiracy. From an order sustaining one defendant's demurrer to the evidence and directing a verdict for other two defendants, plaintiff appeals.

Affirmed in part, and reversed in part and remanded.

Rehearing denied; GIBSON, J., not participating.

Woodard & Westhafer, Chas. B. Rogers, and E. O. Patterson, all of Tulsa, for plaintiff in error.

West & Davidson, Mills, Cohen & Taylor, and Jameson & Gray, all of Tulsa, for defendants in error.

PER CURIAM.

As a matter of convenience, the parties to this appeal will be referred to as they appeared in the trial court since they occupy the same position here.

The defendant Mid-West Chevrolet Corporation was engaged in selling Chevrolet automobiles and trucks in the city of Tulsa. The defendant Porter Construction Company was a copartnership engaged in highway construction and other contracting work in Oklahoma and Arkansas. The defendant General Motors Acceptance Corporation was engaged in the business of financing deferred payments on automobiles and trucks and buying such paper from car and truck dealers.

The petition of the plaintiff in substance alleges that the defendants entered into a conspiracy whereby through false and fraudulent inducement, representations, statements, and guarantees the Mid-West Chevrolet Corporation would be enabled to sell a number of trucks and secure a substantial down payment thereon, take a conditional sales contract for the deferred payments, sell it to the defendant General Motors Acceptance Corporation, and the defendant Porter Construction Company would be enabled to get the use of such trucks in their business, and whereby after a short period the trucks would be repossessed through the medium of General Motors Acceptance Corporation; that in pursuance of this scheme the Mid-West Chevrolet Corporation through its agents and employees and the defendant Porter Construction Company by its partners and representatives acting in concert represented and guaranteed to the plaintiff that if he would purchase a truck from the Mid-West Chevrolet Corporation that he would be given immediate employment by the Porter Construction Company in work which would average him around $14.40 per day for a period of from one to two years whereby he would be enabled to pay certain expenses and the balance of the purchase price on said truck; that plaintiff relied upon such representation and guarantee and purchased a truck from the Mid-West Chevrolet Corporation, borrowing from the bank for this purpose the sum of $450, out of which he made the initial payment of $305 on the truck and payment of insurance in the sum of $16 and executed his note and conditional sales contract in the sum of $636 to secure the balance of the purchase price; that thereupon plaintiff was sent to the state of Arkansas by the defendants for the purpose of engaging in work for the Porter Construction Company; that on arriving at the place of work he found the representations and guarantees of said defendants to be false and untrue and such as were either known by them to be false and untrue at the time they were made or else made with a reckless disregard of their truth or falsity; and that by reason of the fraud and deceit practiced by the defendants plaintiff was unable to earn enough to meet the deferred payment on the truck and that the conspiracy was then completed by the General Motors Acceptance Corporation stepping in and illegally repossessing said truck in concert with Mid-West Chevrolet Corporation and thereupon prays damages resulting from said conspiracy.

The defendants filed separate answers. The answers of Mid-West Chevrolet Corporation and Porter Construction Company, a copartnership, were verified, and, in addition to general denials of the allegations of plaintiff's petition specifically denied the agency of the various persons named in the plaintiff's petition. The answer of General Motors Acceptance Corporation was an unverified general denial. Trial was had to a jury. At the conclusion of plaintiff's evidence, each of the defendants interposed separate demurrers thereto. The court sustained the demurrer of General Motors Acceptance Corporation and overruled those of the other two defendants. Thereupon the defendants Mid-West Chevrolet Corporation and Porter Construction Company introduced their evidence and rested. The plaintiff offered no rebuttal evidence. Thereupon the defendants renewed their demurrers to the evidence of the plaintiff and requested the court to direct a verdict in their favor. The court sustained the motions for a directed verdict.

The plaintiff appeals and makes nine assignments of error which are discussed under three general propositions which may be summarized as error of the court in directing verdict for the defendants Mid-West Chevrolet Corporation and Porter Construction Company; error in sustaining the demurrer of the General Motors Acceptance Corporation to the evidence of the plaintiff and error in ruling on the admissibility of certain evidence.

The defendants urge that this appeal must be dismissed for the reason that the case-made does not contain a statement that it contains all of the evidence.

Section 533, O.S. 1931, provides: "A party desiring to have any judgment or order of the district, superior or county court, or a judge thereof, reversed by the Supreme Court, may make a case, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court."

In the case of Seibold v. City of Muskogee, 155 Okl. 81, 8 P.2d 35, this court has held that compliance with the above statute is sufficient, in that case the rule is fully discussed and explained. And, furthermore, by reason of section 535, O.S. 1931, it is specifically provided that an appeal shall not be dismissed even where the evidence is stated in such a manner as to be insufficient for the purpose for which the case is made until an opportunity has been given to correct any deficiency or mistake in the record. See Pahlka v. Chicago, R.I. & P. Ry. Co., 62 Okl. 223, 161 P. 544.

The defendants do not point out wherein the record is deficient herein or omissions of any evidence or other matters which are essential to the determination of errors complained of by the plaintiff on this appeal, and we have carefully examined the record and find that it apparently meets the requirements of the statute and for this reason we find that there is no merit in the contention of the defendants in this respect. We will therefore proceed to consider the appeal on its merits.

As previously stated, this is an action for damages arising out of an alleged conspiracy. The plaintiff's evidence is in many respects similar to that in the case of Mid-West Chevrolet Corporation v. Noah (Okl. Sup.) 48 P.2d 283 but the theory of the case at bar differs therefrom in that the cited case was an action for fraud and deceit predicated upon the theory of fraudulent promises of employment whereas the case now under consideration is predicated upon the theory of damages resulting from a...