Yellow Taxicab & Baggage Co. v. Cooke
| Decision Date | 26 March 1935 |
| Docket Number | Case Number: 25164 |
| Citation | 171 Okla. 269,42 P.2d 826,1935 OK 338 |
| Parties | YELLOW TAXICAB & BAGGAGE CO. v. COOKE |
| Court | Oklahoma Supreme Court |
¶0 1. CONTINUANCE - Testimony Admitted by Party to Avoid Continuance on Account of Absent Witness Held Properly Excluded at Trial After Continuance on Other Grounds.
Section 397, O. S. 1931, provides that if the adverse party will consent that on trial the facts alleged in an affidavit for continuance shall be read and treated as the deposition of the absent witness, no continuance shall be granted on the ground of the absence of such evidence. On defendant's application for a continuance under said section, plaintiff consented that the affidavit should be read and treated as the deposition of the absent witness, and afterwards, upon other grounds, the court continued the case for a period of five months. Held, the court at the subsequent trial committed no error in refusing to permit the defendant to read said affidavit to the jury as a deposition on plaintiff's objection thereto, since the plaintiff's consent, under such circumstances, does not stand for all time, but is solely for the purpose of preventing a continuance at the time the motion and supporting affidavit is presented.
2. NEGLIGENCE - Instruction on Contributory Negligence not Required in Absence of Evidence.
Section 6, article 23, of the Constitution provides that the defense of contributory negligence shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury. Held, that, where the defendant has pleaded contributory negligence on the part of plaintiff, but has introduced no evidence which tends to show such contributory negligence, and from a review of all the evidence introduced in the case there appears none showing contributory negligence nor any from which an inference of contributory negligence might reasonably be drawn, in such case the defense of contributory negligence as contemplated in the constitutional provision has not been presented, and it is not error for the trial court to refuse to instruct the jury thereon.
Appeal from District Court, Oklahoma County; Hal Johnson, Assigned Judge.
Action by R.B. Cooke against the Yellow Taxicab & Baggage Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Dudley, Hyde, Duvall & Dudley, for plaintiff in error.
Hall & Thompson and Gordon Johnston, for defendant in error.
¶1 This action was instituted in the district court of Oklahoma county by R.B. Cooke, defendant in error, plaintiff below, against Yellow Taxicab & Baggage. Company, a corporation, plaintiff in error, defendant below. The parties will be referred to as they appeared in the trial court. The plaintiff sought recovery against the defendant for personal injuries sustained by him while a passenger in the taxicab owned and operated by the defendant. The cause was tried to a jury and resulted in a verdict for the plaintiff. From the judgment entered thereon the defendant has appealed.
¶2 The plaintiff in his amended petition alleges that he was a passenger for hire on July 1, 1930, in one of the defendant's taxicabs; that while such passenger he suffered certain personal injuries as a result of the negligent operation of said taxicab by the employee of the defendant. The defendant in its amended answer admits its corporate existence and ownership and operation of the taxicab business for hire, and, after a general denial of the remaining allegations of plaintiff's petition, sets up the affirmative defense of contributory negligence. The substance of the defendant's allegations on this score are to the effect that the plaintiff was intoxicated and that such intoxicated condition contributed to the injuries which he received.
¶3 The case was first called for trial in October, 1932, at which time the defendant filed its motion for continuance on the ground that the driver of the taxicab, one E.H. Brown, was not able to attend and testify on account of illness, and submitted the supporting affidavit of R.C. Robinson as an officer of the defendant, as provided by statute, setting out what affiant believed the substance of the missing witness' testimony would be. The plaintiff agreed that the affidavit might be read in evidence as the testimony of the missing witness and a jury was impaneled to try the case. It then appeared that the defendant had failed to plead contributory negligence in its original answer and it asked leave of the court to amend by adding a plea to that effect. Leave was granted and the case was then continued upon application of the plaintiff in order that he might prepare to meet the defense thus pleaded. Subsequently, and on the 27th day of March, 1933, after amended pleadings had been filed, the cause came on for trial and was tried in its regular order. At this subsequent trial, the defendant offered in evidence the affidavit for continuance presented at the former hearing and insisted upon its reception as the testimony of the witness Brown, it appearing that said witness had died since the former hearing. This offer was refused by the court. The defendant assigned this refusal as one of the two assignments of error presented on this appeal.
¶4 The affidavit was submitted under section 397, O. S. 1931, which section requires that a motion for continuance on account of the absence of evidence be supported by an affidavit showing among other things the facts the affiant believes the witness will testify to, and that the affiant believes the same to be true. This section of the statutes further provides that, if the adverse party will consent that the affidavit shall be read and treated as the deposition of the absent witness, no continuance shall be granted on the ground of the absence of such evidence. The purpose of the statute is, on the one hand, not to compel a party to go to trial in the absence of a material witness when he has done all that can reasonably be expected of him to procure the attendance of the witness, and, on the other hand, to guard against the abuse of the practice of continuances and procure the speedy determination of pending causes. It appears that the defendant's motion for continuance and affidavit supporting it was offered at the first hearing in this matter and for the purpose of procuring a continuance at that time. The cause was continued on other grounds, and was finally reached for trial five months later. The absent witness Brown, at the time of the first hearing, was ill in a hospital in Oklahoma City. Three months after the first hearing and two months prior to the actual trial of this cause, Brown died. The defendant presents no authorities in support of his argument on this assignment of error. On the other hand, the plaintiff in support of the court's exclusion of the affidavit in question cites the following cases: Padgitt v. Moll, 159 Mo. 143, 60 S.W. 121; Jackman v. St. L. & H. Ry. Co. (Mo. Sup.) 231 S.W. 978; Cutler v. Cutler, 130 N.C. 1, 40 S.E. 689; 13 C. J. 197; 6 R. C. L. 571. These authorities have been examined and reasonably support the action of the court in excluding said affidavit. The defendant's assignment of error on this point must be held to be without merit.
¶5 At the time of the submission of this case to the jury, the defendant requested the court below to instruct the jury upon the defense of contributory negligence and offered certain instructions numbered 3, 5, and 6 upon that issue. These instructions were refused by the court and exceptions allowed the defendant. The court then proceeded to instruct the jury and gave no instructions whatever upon the issue of contributory negligence.
¶6 This refusal of the trial court is assigned by the defendant as the other of its two assignments of error, and the defendant relies upon the provisions of section 6 of article 23 of the Constitution of this state, which reads:
"The defense of contributory negligence or assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."
¶7 The defendant strenuously urges that its plea of contributory negligence should have been submitted to the jury under the above-quoted constitutional provision, and that this case should be reversed on account of the refusal of the court so to do.
¶8 This court has held in the recent case of Miller v. Price, 168 Okla. 452, 33 P.2d 624, as follows:
- and the opinion in that case is attacked by the defendant as contrary to the true purpose and intent of the constitutional provisions above quoted and as a deviation from the construction placed upon that provision by previous decisions of this court. It is the contention of the defendant that the issue of contributory negligence must at all times be submitted to the jury on proper instructions, and that the trial courts are without the power not only to determine that the defense of contributory negligence has been established by the evidence, but also to determine that no evidence in...
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