Barton v. Harmon

BINGAMAN, J.

This is a second appeal in an action brought by Basheba Harmon against Lillian Ruby Barton et al., as executors of the last will of G. Lange, deceased, and Muskogee Yellow Cab Company, for damages for personal injuries suffered by the plaintiff while riding in a taxicab. The first appeal is reported in 203 Okla. 274, 221 P. 2d 656. On that appeal we affirmed the judgment of the district court awarding plaintiff a judgment of $6,000 against Muskogee Yellow Cab Company, but reversed and remanded the judgment as to the executors of the estate of G. Lange, deceased, for the reason that the city ordinances relied upon in the action had not been proved.

The liability of the executors of the estate of G. Lange, deceased, who was the principal owner of Muskogee Yellow Cab Company, arose from the fact that Lange, in order to meet the requirements of a city ordinance, had executed a bond for $5,000 as provided in the ordinance, to indemnify anyone injured in the operations of the Muskogee Yellow Cab Company up to that amount. Upon the remanding of the case to the district court as to the executors, plaintiff filed a supplemental petition seeking a money judgment against the executors and the foreclosure of a mortgage executed by Lange as security for a bond. Upon the trial of the case the city ordinances were put in evidence, and the trial court rendered judgment in favor of plaintiff in the sum of $4,540.70, being the $5,000 penalty of the bond, less a certain payment which the court found had been made to plaintiff, and directed the foreclosure of the mortgage and the sale of the mortgaged property to satisfy the judgment. The executors appeal.

It is first contended that by the terms of the applicable statute, under which the city ordinance of the city of Muskogee relied by plaintiff and pursuant to which the bond was made was enacted, the city could only require a bond executed by a surety company as surety, and that the statute, by expressly authorizing the requiring of such a bond by the city as a prerequisite to the use of automobiles for carriage of passengers in a city, negatived the right of the city to require any other or different bond. In support of this contention defendants cite In re Lankford, 72 Okla. 40, 178 P. 673; Grantham v. City of Chickasha, 156 Okla. 56, 9 P. 2d 747; Worley, Mayor, v. French, 184 Okla. 116, 85 P. 2d 296, and other cases holding that the power of a city to pass legislation is only such as granted by the law-making powers of the state and that unless expressly granted authority by the statute such powers as those exercised by the city of Muskogee in the passage of the aforesaid ordinance may not be exercised.

The statute, 47 O.S. 1941 §221, reads as follows:

“Any person, firm or corporation may use automobiles or auto-busses for the carrying of passengers for hire within any city of this state subject to the provisions hereinafter contained and reasonable regulation and control by the legislative authority of the city in which said business is conducted, which regulation may include the requiring of a policy of insurance or bond executed by a surety corporation authorized to do business in this State, as surety, covering liability in case of each automobile or auto-buss, the requiring of a definite schedule showing the route to be traversed and the time of all trips to be made, and which regulation may prohibit' the carrying of passengers outside of said automobile or auto-busses and may include any other requirement reasonable in its nature.”

It is to be noted that the statute does not in express terms prohibit the city from requiring any bond except a surety bond, but apparently grants them the power to require the surety bond regardless of the fact that the applicant is financially solvent or that he can give a personal bond with sureties amply responsible. It implies the power upon the city to require a bond, and empowers them, if they deem it for the best interest of the public, to require such bond to be made by a surety corporation. It also gives to the city the right to provide reasonable regulations and control of the business of the use of automobiles or auto-busses for the carrying of passengers.

In City of Tulsa v. Thomas, 89 Okla. 188, 214 P. 1070, we said:

“In view of the exercise of the supreme legislative body of this state in giving a statutory right to conduct the jitney business on the public highways, we believe that the municipal legislative bodies are limited to the provisions of that act, and could only be permitted to exercise reasonable regulation and control for the preservation of public safety as authorized by the statute.”

We are unable to agree with defendants that the giving of a personal bond secured by mortgage on real estate, is prohibited by sec. 221, supra, or that it is not a reasonable regulation of the business of the taxicab company in the interest of public safety which is authorized by said sec. 221.

What we have said above disposes of the contentions that the ordinance being void, the bond and mortgage were also void, and the further contention that liability was created by the terms of the ordinance and that the power exercised, being beyond the power of the city, the bond was void and unenforcible.

In their second proposition or contention defendants make numerous claims which upon examination we find are wholly untenable. Thus they claim that no proof was made that the defendants were executors of the estate of G. Lange, deceased, and that no proof was made that the ordinance in question had been published. But, in our opinion on the first appeal, we pointed out that in their answer to the amended petition of plaintiff the defendants admitted that they were the executors of the estate of Lange, and also pointed out that the language of the bond “said ordinances are in full force and effect” sufficiently established the publication thereof.

It is also contended that plaintiff did not prove any sum to be due her. But, her evidence showed that the judgment against the cab company had not been paid, and the judgment of the trial court being for less than the penalty of the bond, proof that the claim against the cab company was unpaid was sufficient to support the judgment. It is also contended that no claim was presented to the executors by plaintiff. But, where the case involves the foreclosure of a mortgage, presentation of such claim is unnecessary. Jones v. Hill, 167 Okla. 552, 31 P. 2d 145. Furthermore, since the defendants in their answer denied all liability, the presentation of the claim, while the suit was pending, would have been futile and unnecessary. Coleman v. Bowles, 72 Okla. 313, 181 P. 304.

Affirmed.

HALLEY, V. C. J., and WELCH, DA-VISON, and JOHNSON, JJ., concur.