Breshears v. Wright

The parties will be referred to as they appeared in the trial court.

Plaintiff, L.J. Wright, brought an action for damages against C.F. Breshears, A.L. Suggs, and Barney Thomas. Plaintiff was riding in a truck driven by Breshears. The plaintiff and Breshears were returning from Choteau, Okla., to Claremore, Okla., after delivering a load of gasoline, and when they reached a place approximately two and one-half miles from Pryor, Okla., the truck driven by Breshears collided with a pickup truck driven by the defendant A.L. Suggs, approaching in the opposite direction, resulting in the collision causing the accident. Barney Thomas was not connected by the evidence in any way with the collision and the court properly sustained a demurrer to the evidence as to him.

Judgment was rendered in favor of the plaintiff, L.J. Wright, against C.F. Breshears, from which judgment Breshears appeals. Plaintiff in error seeks only to reverse the judgment as to L.J. Wright.

It is first urged that the court erred in not sustaining an objection to the introduction of any evidence on the ground that the petition failed to state a cause of action. The petition was not attacked by demurrer. This court has held that an objection to the introduction of evidence on the ground that the petition does not state a cause of action is not favored where no demurrer is lodged, and that where such sufficiency is so challenged, there must be a total failure to allege some matter essential to a recovery, and that the allegations will not be held bad where they are simply incomplete, indefinite, or conclusions of law. Oklahoma Natural Gas Corp. v. Schwartz,146 Okla. 250, 293 P. 1087; Mires v. Hogan, 79 Okla. 233,192 P. 811; Good v. First Nat. Bank, 88 Okla. 110, 211 P. 1051; Geck v. Security State Bank, 133 Okla. 67, 271 P. 152; Hunt v. Tulsa Terrazzo Mosaic Co., 157 Okla. 174, 11 P.2d 521.

It is urged in proposition 2 of defendant's brief that the court erred in refusing, upon request, to instruct the jury on the law of contributory negligence, assumption of risk, and imputed negligence.

The court, in its instruction No. 11, instructed the jury that the plaintiff must use reasonable care, and fairly covered the law with relation to contributory negligence and assumption of risk. No error is pointed out in the brief of the defendant in this instruction. We are of the opinion, and hold, that the instructions, taken as a whole, reasonably state the degree of care to be used by the plaintiff. This instruction is almost identical with the instruction approved by this court in Sand Springs Ry. Co. v. McWilliams, 170 Okla. 85, 38 P.2d 539. We are of the opinion that the rule as to imputed negligence does not apply.

Plaintiff, Wright, did not obtain a judgment against A.L. Suggs; and defendant Breshears does not seek to reverse the judgment in favor of the defendant Suggs, but seeks only to reverse the judgment of plaintiff, Wright. The doctrine of imputed negligence as between Wright and Breshears does not apply.

In Miller v. Price, 168 Okla. 452, 33 P.2d 624, we said:

"Instructions in all cases should run to the facts and to all proper deductions and interpretations of them, and not to questions not presented or covered by the evidence."

The degree of care placed upon the plaintiff with relation to the defendant Breshears is stated in Miller v. Price, supra, as follows:

"There is some dispute in the testimony as to whether plaintiff was an employee or a guest of defendant at the time of the wreck, but this is not a material issue, as the degree of care which defendant was bound to use to avoid injuring plaintiff would be the same in either case."

The third and final proposition is that the court committed error when it refused, upon request, to instruct the jury that the evidence introduced by the defendant Suggs, after the case of plaintiff and the defendant Breshears was closed, was not to be considered by the jury in their determination of the controversy which existed between plaintiff, Wright, and the defendant Breshears.

After the defendant Breshears had rested, defendant Suggs was called on his own behalf to explain a second time on the witness stand the manner in which he was driving his truck at the time of the collision. After the witness had proceeded to detail the nature of the accident, counsel for Breshears objected to each and every question propounded to the witness and the answers given, for the reason that the plaintiff had rested his case and the defendant Bre shears rested his case.

Ordinarily, the trial court has a very liberal and broad control of the manner in which it receives evidence. No authorities are cited by the defendant showing wherein the reception of this evidence, if out of order, constitutes error. We are of the opinion, and hold, that no prejudicial error resulted in this proceeding.

Finding no error in the action of the trial court, the judgment is affirmed.

OSBORN, C. J., BAYLESS, V. C. J., and BUSBY, CORN, and GIBSON, JJ., concur.