Wellman v. Novak
| Decision Date | 21 January 1964 |
| Docket Number | No. 39581,39581 |
| Parties | George W. WELLMAN, an individual, and The Atchison, Topeka and Santa Fe Railway Company, a corporation, Plaintiffs in Error, v. Charles F. NOVAK, individually and as Administrator of the Estate of Frances R. Novak, Deceased, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where defendant's truck, which collided with automobile of plaintiff's decedent was taken and used without owner's knowledge or consent and not upon owner's business, it is immaterial that it had defective brakes, and owner is not liable.
2. In order to give a court jurisdiction over a defendant who is a non-resident of the county where suit is brought, and for whom summons has been issued to another county, the averments of the petition and the proof on the trial must show that the plaintiff has a valid joint cause of action against the resident defendant on whom valid service is had, as well as against the non-resident defendant.
Appeal from the Superior Court of Creek County; G. B. Chuck Coryell, Judge.
Action filed in the Superior Court of Creek County, Oklahoma, to recover for the death, pain, medical expenses, etc. of deceased. From a judgment for plaintiff, defendants appeal. Reversed and remanded with directions.
Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, for plaintiff in error, George W. Wellman.
Rainey, Flynn & Welch, Oklahoma City, Charles E. Daniel, Drumright, for plaintiff in error, Atchison, Topeka & Santa Fe Ry. Co.
Thomas A. Wallace, Otis D. James, Jack B. Sellers, by Jack B. Sellers, Sapulpa, for defendant in error.
The defendant in error, hereafter referred to as plaintiff, brought this action as the administrator of the estate of Frances R. Novak to recover for her alleged wrongful death against the defendants George W. Wellman and The Atchison, Topeka and Santa Fe Railway Company. The defendant George W. Wellman will be referred to hereafter as Wellman, and his co-defendant as railway company.
The amended petition, filed in the Superior Court of Creek County, Oklahoma, alleged that the defendant Wellman, for himself and as agent for his co-defendant railway company was operating a 1959 Ford truck owned by the railway company when he negligently collided with a vehicle operated by the plaintiff's decedent; that the negligence of the defendants consisted of operating the said truck at an excessive speed and in excess of the statutory limit; in failing to stop at stop sign; in failing to apply the brakes and keep a proper lookout; in failing to keep vehicle under control and to yield the right of way; failure to drive to right of center line and driving in reckless manner.
Judgment was sought for the death of deceased for her pain and suffering, and for hospital and funeral expenses; damage to her automobile and the destruction of personal property.
The collision occurred in Woodward County, Oklahoma. The suit was filed in Creek County, Oklahoma. The defendant railway company was served in Oklahoma County, Oklahoma, and the defendant Wellman was served in Woodward County, Oklahoma.
To this petition, the defendant Wellman filed a plea to the jurisdiction of the court, which was overruled and exception allowed.
The answer of the railway company considered of a general denial and a specific denial of the agency of Wellman and alleged that said truck was at the time of the collision being used contrary to direct orders and that defendant Wellman was using same outside of the scope of his employment.
The answer of Wellman was a general denial, contributory negligence, sudden emergency and unavoidable casualty.
An amendment to the petition alleged faulty brakes in the said truck of the railway company.
By further answer the defendant railway company filed a general denial alleging that the truck was being driven by the defendant Wellman on his own personal business and in contravention of specific orders.
Upon the issues thus joined, trial was had to a jury which rendered a verdict in favor of the plaintiff against both defendants. After the disposition of the motions for new trial, this appeal by both defendants followed.
The defendant railway company submits but one proposition for reversal:
'The trial court erred in overruling this defendant's demurrer to the evidence, motion for directed verdict and motion for judgment notwithstanding the verdict for the reason that the undisputed evidence proved that the co-defendant who was driving the truck was not at the time of the accident acting as the agent, servant or employee of this defendant.'
The defendant Wellman offers two contentions which shall be hereafter considered.
The argument of the defendant railway company necessitates a consideration of the evidence insofar as pertinent. The following facts are undisputed:
1. The truck belonging to the railway company was a 1959 model.
2. The defendant Wellman, who was an employee of the defendant railway company, had possession and control of this truck.
3. On Friday, June 19, 1959, the day before the collision, Wellman and one Samples left Woodward on a fishing trip in a Plymouth car of Samples. They went to Lake Supply, about twelve miles from Woodward, and were fishing. About 8:00 p. m. a young man notified them that his car was embedded in sand almost three miles distant and solicited their aid. On their way in Samples' car to help, the car became stuck in the sand. They walked back to the fishing site and found another man to take them to Woodward. About midnight they went to the Santa Fe depot, took the railway company truck, returned to the marooned cars, freed them and drove back to the fishing site about 2:00 a. m. About 7:00 a. m. the next morning Wellman started back to Woodward in the said Ford truck when the collision occurred.
The truck was taken by Wellman without express or implied authority of the defendant railway company and without its knowledge or consent and was not being used on the railway company's business.
The above facts are undisputed and are the only ones necessary to consider in connection with the liability of the railway company.
The whole theory of the plaintiff is that there were defective brakes upon the truck, and by reason of this the owner is liable. It was conceded in the trial court that the question of agency was out, inasmuch as the defendant Wellman...
To continue reading
Request your trial
-
Eberle v. Dyer Const. Co.
...for lack of proper venue. Fisher v. Fiske, 96 Okl. 36, 219 P. 683 (1923); Sinor v. Hart, Okl., 383 P.2d 669 (1963); Wellman v. Novak, Okl., 392 P.2d 377 (1964); Bill Hodges Truck Co. v. Williams, Okl., 470 P.2d 310 This extraordinary remedy of post verdict dismissal for want of venue was th......
-
Norville v. Cribbs
...When the defendant Groendyke is removed from the case by the sustaining of its demurrer, the rule laid down in the case of Wellman v. Novak, Okl., 392 P.2d 377, applies. This rule is as 'In order to give a court jurisdiction over a defendant who is a non-resident of the county where suit is......