Ada-Konawa Bridge Co. v. Cargo

This suit was filed in Pontotoc county by J.E. Cargo against McKeown Bridge Company, a corporation. An attempt to get service was had, a motion to quash said attempt at service was sustained and the court ordered that Ada-Konawa Bridge Company, an express trust, be substituted as defendant in the action and directed that summons be issued to said substituted defendant. Later, a praecipe for summons was filed, directing the clerk to issue summons to the sheriff of Oklahoma county, state of Oklahoma, to serve in his county on the Ada-Konawa Bridge Company (serve Geo. D. Key), defendant in said action. The sheriff of Oklahoma county made his return, which was in part as follows:

"by delivering a true copy to Geo. D. Key in person, he being service agent for the above-named Ada-Konawa Bridge Company, Oct. 26, 1928. * * *"

Special appearance was made by the defendant and motion to quash, which reads as follows:

"Comes now Ada-Konawa Bridge Company, an express trust, appearing specially and for the purpose of this motion only, and moves the court to quash, set aside, and hold for naught the purported summons and purported service thereof, in the above-entitled cause, for the reason that the same was not issued, served, and returned according to law, and is insufficient to confer jurisdiction on this court.

"The copy of said purported summons delivered to George. D. Key at Oklahoma City, Okla., by the deputy sheriff of Oklahoma county, Okla., is hereto attached, marked Exhibit 'A' and made a part of this motion."

On the 24th day of April, 1929, said motion to quash was overruled.

The majority opinion admits that this motion was good, in that this was a transitory action that defendant, an express trust, could only be sued in the county where its principal place of business or office was, or in the county or residence of the trustee served, but holds that the same was waived, for the reason there was nothing wrong with the summons and return, and that the motion failed to specifically raise the question of venue, and for that reason, was not well taken. Unless waived, the district court of Pontotoc county never secured jurisdiction of the express trust.

The Supreme Court of Oklahoma Territory, in Chicago Building Manufacturing Co. v. Pewthers, 10 Okla. 724, 63 P. 964,00 in the second paragraph of the syllabus, said:

"Where a court has no jurisdiction over the particular cause or of the person of the defendant, and the defendant appears specially for the purpose of calling the attention of the court to such irregularities, and the court thereupon overrules his motion to such jurisdiction, he may save his exception, file his answer and proceed to trial without waiving such error; and he may take advantage of such error on appeal to a higher court."

This rule was followed and approved in St. Louis San Francisco Ry. Co. v. R.J. Clark, 17 Okla. 562, 87 P. 430. At page 564, the special appearance and motion reads as follows:

"Comes now said defendant, St. Louis San Francisco Railroad Company, a corporation, appearing specially and for the purpose of this motion only, and moves the court to quash and hold for naught the summons and pretended service thereof in said cause, for the reason that same was not issued, served and returned according to law."

This court quotes with approval from the Chicago Building Manufacturing Company Case, supra, and quotes a number of authorities from other states.

In the case of Braden v. Williams, 101 Okla. 11, 222 P. 948, this court announced and followed the same rule, and, cited with approval many cases from this court. At page 948, this court said:

"It is next contended that the defendant's special appearance and motion to quash was insufficient because it fails to direct the court's attention to the specific error complained of. The motion to quash was in substance as follows: Defendant appears specially, and for the purpose of this motion only moves the court to quash, set aside, and hold for naught summons and purported service thereof in the above-entitled cause for the reason the same was not issued, served, and returned according to law and was insufficient to confer jurisdiction upon this court. The defendant in error to support this contention cites 32 Cyc. 526, and certain cases from other jurisdictions, supporting the rule announced therein. Without discussing what the rule is in other states, this court has approved a motion almost identical with the one under consideration in the case at bar, in the case of St. L. S. F. Ry. v. Clark,17 Okla. 562, 87 P. 430. The motion set out in the opinion is as follows:

" 'Comes now said defendant, St. Louis San Franscisco Railroad Company, a corporation, appearing specially and for the purpose of this motion only, and moves the court to quash and hold for naught the summons and pretended service thereof in said cause, for the reason that same was not issued, served and returned according to law.'

"The court held it was error to overrule the motion and reverse the case. This case has been cited with approval and followed by this court in the following cases: State ex rel. Collins v. Parks, Judge,34 Okla. 335, 126 P. 242; Wm. Cameron Co. v. Consolidated School District No. 1, Kiowa County, 44 Okla. 67, 143 P. 182; Lausten v. Lausten, 55 Okla. 518, 154 P. 1182; St. Louis S. F. Ry. Co. v. Reed, 59 Okla. 95, 158 P. 399; Commonwealth Cotton Oil Co. v. Hudson, 62 Okla. 23, 161 P. 535; and cited with approval by the federal court in the case of St. Louis S. F. Ry. v. Laughmiller (D.C.) 193 Fed. 689."

The motion to quash in the instant case is almost identical with the motion approved by this court in a great number of cases. The majority opinion says this rule does not apply to the instant case, for the reason one was a jurisdictional question and the other was a question of venue. The question presented by the motion here was a question of the jurisdiction of the person. It is admitted that the court had jurisdiction of the subject-matter, but contends that the court did not have jurisdiction of the person. It is further contended that this defect was not called to the attention of the court at the time of the motion.

The special appearance and motion to quash service of summons was filed timely and was presented to the court upon the question of whether personal service could be had on the defendant in Oklahoma county and be required to appear in Pontotoc county. The preacipe and summons showed on the face that this was a transitory action; that under our law the defendant could only be sued in the county of its residence or in a county where service of summons could be had. This was all before the court in the record, made plain by the praecipe and the summons under question. It was not waived, and was presented in the form and manner that had been approved by this court in a number of cases. No case from the Supreme Court of Oklahoma is cited by the majority opinion in support of the rule announced therein.

It is true the majority opinion states:

"We think the rule was correctly announced in the case of Fisher v. Fiske, 96 Okla. 36, 219 P. 683. An examination of the record in that ease shows that counsel in their motion to quash specifically raised the question of venue, and that by reason of nonresidence the district court of Tulsa county had no jurisdiction to hear and determine said case."

This case, cited with approval, is clearly against the rule announced in the instant case.

This court, in the case of Braden v. Williams, supra, admitted in the body of the opinion that there could be found a different rule from other states, but adhered to the rule that had been announced and followed in this state, and I see no good reason why the rule should not be followed in the instant case. I am of the opinion it would be the better practice to follow the Oklahoma rule in the instant case. Not only did the defendant in the court below present his motion timely to quash and question the jurisdiction of the court over the person of defendant, but, instead of waiving it, he raised it at every opportunity.

After the evidence was all in and there was no proof in the record to indicate or show that the district court of Pontotoc county had jurisdiction of the defendant, the motion was renewed and again overruled.

In an argument filed with the trial court, in support of the motion to quash, defendant in error's attorney called the court's attention to the case of General American Oil Co. v. Wagoner Oil Gas Co., 118 Okla. 183, 247 P. 99, which case holds that an express trust can sue or be sued under the laws of this state as an individual.

The record in this case disclosed that the Ada-Konawa Bridge Company was an express trust; that the three trustees resided in Oklahoma county; that its principal place of business was in Oklahoma county; and the record further discloses that plaintiff got service on Geo. Key as one of the trustees or service agent in Oklahoma county. With all this record before the court, it cannot successfully be contended that the defendant's motion did not inform the trial court of the true status of this case at the time same was presented.

Plaintiff's petition alleged in part as follows:

"Plaintiff alleges and states that said shot was fired from a pistol by one of the agents, servants, or employees of the defendant, and that said shot was fired with the willful, wanton, malicious, and negligent intent upon the part of the said servant, agent, or employee of the defendant to strike, injure, wound, and kill the plaintiff, and in violation of the criminal laws in such cases made and provided, and in utter and reckless disregard of the rights of the plaintiff."

This petition did not state a cause of action and it was error for the court to overrule a demurrer thereto, and it was also error for the court to overrule plaintiff in error's motion for directed verdict. The demurrer should have been sustained. This is an affirmative allegation in the petition, "that said shot was fired from a pistol by one of the agents, servants, or employees of the defendant, and that said shot was fired with the willful, wanton, malicious, and negligent intent upon the part of the said servant, agent, or employee of the defendant to strike, injure, wound and kill the plaintiff. * * *"

Nowhere does it charge that it was fired in the performance of any duty that the purported agent was performing for the defendant. Nowhere does it charge that he was acting within the scope of his employment, and, in fact, the charge of the shooting negatives any charge or proof that the person who fired the shot was acting for the defendant. Under this pleading he was acting in his own behalf and not in behalf of the defendant. He was acting with malice, maliciously; not for the purpose of collecting tolls. It is not charged that he was making any attempt to collect tolls or perform any duty connected with defendant's business, and the charge that he did it for the purpose to injure, wound, and kill the plaintiff, negatives any theory that he might be acting for the defendant. It is not shown that it was any part of the duty of the purported servant of the defendant to wound and kill any one.

The majority opinion, at page 9, in discussing the allegations of plaintiff's petition, admits the same was insufficient to state a cause of action, and says:

"Under the liberal rule which prevails in this state regarding amendments for the purpose of rendering substantial justice, a cause ought not to be reversed because there has been a defect or an omission in the allegations of the petition, when such defects or omissions have been fully supplied by the proof and which results in no substantial prejudice to any of the parties to the action."

This rule of law as announced is correct; however, it does not apply to the instant case, for the reason that the pleadings contain not an omission, but an affirmative allegation, which, if true, would relieve the defendant of any liability.

This court, in the case of Bank of Buchanan County v. Priestly, 87 Okla. 62, 209 P. 412, in the first paragraph of the syllabus, said:

"Pleadings in a civil case are not merely matters of form, but they are solemn declarations of the parties. They present to the court what the pleader claims the facts to be and upon such statement asks it to grant him relief, and he is bound by every statement against his interests made therein, and will not be heard to question the correctness thereof, so long as they remain a part of the record; and they may be taken advantage of by the adverse party at any stage of the case, either in the trial court or on appeal, if they are preserved in the transcript or case-made."

A careful reading of the pleadings discloses that the plaintiff was shot by one Pete Martin while crossing a bridge belonging to defendant, and that said shooting, according to the solemn allegations of the petition, was malicious and willful, and was done to injure, wound, and kill the plaintiff. This is a solemn allegation in the petition and the plaintiff is bound by it as long as it remains a part of the record, and it cannot be changed except by amendment or striking it from the pleadings. This court so held in Brown v. Hartford Fire Ins. Co., 108 Okla. 90, 234 P. 352, in the third paragraph of the syllabus:

"Where the testimony of a party is in conflict with his verified pleadings and no motion is made to amend the pleadings to conform to the proof, the solemn admissions in the pleadings will be treated as admitted facts and he will not be heard to question same so long as they remain a part of the record."

Under this rule, so long as it remains a part of the pleadings and the solemn allegations of the plaintiff, it is binding on him, and this is a wholesome rule because the statute provides that a petition must set forth in concise language the claim of the plaintiff. He cannot set up one theory and try the case on another theory.

The court erred in refusing to sustain the motion to direct a verdict, for the reason that at the close of the evidence there was no testimony in the record that disclosed or tended to prove that Pete Martin was an employee, agent, or servant of the defendant. It was Pete Martin who fired the shot complained of. The majority opinion states at page 7:

"The inference or presumption is properly indulged in that George Martin, the father of Pete Martin, was in charge of the bridge for the defendant company. * * * Under such circumstances, the jury could properly infer that he had implied authority to delegate these matters to his son for the purpose of conducting defendant's business."

This is an inference upon inference which does not find favor with this court. The evidence is plain, unambiguous, and not disputed or contradicted, that Pete Martin was not an employee, agent, or servant of the defendant bridge company, and was not authorized to perform any duty for the bridge company; that the mere fact that he was at or near the bridge, and that his father was an employee of the bridge company at the time the injury occurred, could in no way, under no circumstances, be binding on the defendant.

The majority opinion is founded on the theory that there is an inference or presumption that Pete Martin was an employee of the defendant bridge company. This inference cannot be sustained and is completely destroyed by the positive evidence of George Martin and George Key.

George Martin testified as follows:

"Q. Was your son, Pete, at that time, on the pay roll of the bridge company? A. No, sir. Q. Was he an employee of the bridge company at that time? A. No, sir; he wasn't in the employment of the company. Q. He did that just as a personal matter for you? A. That was all. Q. You had never been requested or authorized ____ By Mr. Trice: We object to that as leading __________ By Mr. McCann: Well ____ Q. Had you ever been requested or authorized by the manager of the toll bridge company who employed you, to employ your son Pete as a toll gatherer? A. No, sir."

George Key, general manager and one of the trustees for the bridge company, testified with relation to the parties who had authority to collect tolls, who were employed by him, as follows:

"Q. Well, during March, 1928, did any person other than yourself have authority from that company to employ toll keepers? A. They did not. Q. Who employed Mr. George Martin? A. I did, and also his brother, Will Martin. Q. What did you employ them to do? A. I employed them to collect the toll from people crossing that bridge and when the toll was collected to deliver it to the bank. Q. In the bank up at Konawa? A. Yes, sir. Q. One was supposed to collect toll in the day-time and one at night? A. Yes, Mr. George Martin was employed to collect the toll in the day-time and his brother Will Martin at night. Q. Did you authorize Mr. George Martin, or his brother, to employ anyone to collect toll in the daytime or nighttime? A. No, sir. Q. Did you or the Ada-Konawa Bridge Company, employ Pete Martin to collect toll there? A. No. sir. Q. I will ask you if you knew before this shooting, or at the time of the shooting, that Mr. Pete Martin, Mr. George Martin's son, on one or two occasions, or on several occasions, collected tolls when his father wanted to be away? A. No, sir; I never had heard of it until that time. Q. Did you or the Ada-Konawa Bridge Company in any way ratify or acquiesce in his collection of tolls there? A. Certainly not. Didn't know anything about it."

In the case of Green v. Struble, 141 Okla. 207, 284 P. 895, this court, in the first paragraph of the syllabus, with reference to delegation of power of agency, said:

"As a general rule, an agent has no implied power to delegate his powers to a subagent, and any one employed by him as a subagent does not become the agent of the principal without the consent of such principal."

In the case of Whitney, Ex'r, v. Low, 137 Okla. 1,278 P. 1096, in the fourth paragraph of the syllabus, this court said:

"Agency is never presumed, but is a question of fact to be proven, and the burden of proving agency, including not only the fact of its existence, but the nature and extent thereof, rests upon the party alleging it."

And in the case of Walker v. W. T. Rawleigh Co.,133 Okla. 75, 271 P. 166, as to declarations and acts of an alleged agent, this court, in the first paragraph of the syllabus, said:

"It is well established that neither the declaration nor acts of an alleged agent can be admitted in evidence to prove that he is the agent of another."

In St. John v. Ivers, 124 Okla. 215, 255 P. 706, this court said in the third paragraph of the syllabus as follows:

"In an automobile accident case, where defendant admits ownership of the car, and plaintiff's allegations as to agency of defendant's daughter, who was driving at the time of the accident, merely show general authority based on permissive use, this admission and these allegations raise a presumption or inference that the daughter was acting within the scope of her general authority at the time of the accident, but where defendant's averments and proof establish that at the time of the accident the daughter was driving the car without the knowledge or consent of the owner, for her own pleasure, and in violation of express instructions, and where this evidence is uncontradicted by rebuttal evidence and the witnesses are in no way impeached, the presumption previously existing is destroyed, the lack of authority on the particular occasion is established, and no question of fact as to agency at the time of the accident remains."

The evidence in this record is clear, concise, convincing, and undisputed, that Pete Martin was not an employee of the bridge company, and any inference or presumption raised by the mere fact that at some time he collected tolls, and this without the knowledge or consent of the bridge company, tending to show that he might be an employee of the bridge company, is destroyed by the positive testimony that he was not an employee of the bridge company.

It is a harsh rule that would make an owner of property liable for the acts of a man who was acting in regard to such property without the knowledge or consent of the owner. Under any theory of this case it should be reversed, with directions to sustain the motion for directed verdict.

Even had Pete Martin been an agent or servant of the bridge company there would be no liability for his unauthorized act.

This court, in Rawley v. Commonwealth Cotton Oil Co.,88 Okla. 29, 211 P. 74, said:

"We are fully convinced that no liability has been shown. In the first place, considering the rights and liabilities of the parties from the standpoint of master and servant, an essential ingredient of liability is lacking, viz., that the shooting does not appear to have been within the scope of the boys' employment, even assuming that they had authority from the corporation or their fathers as officers of the corporation to collect ten cents from the injured person for the privilege of fishing in the pond."

Under the authorities cited, supra, the motion to quash should have been sustained for the reason that the district court never secured jurisdiction and had no extraterritorial jurisdiction, and could only get service in Pontotoc county, and after service vice in Oklahoma county upon the defendant when challenged by a proper motion it failed to give the district court of Pontotoc county jurisdiction.

The motion for directed verdict at the close of the evidence should have been sustained: First, the petition did not state a cause of action; second, if taken as true, pleaded facts which would relieve the defendant of any liability and the plaintiff is bound by the solemn allegation of his petition.

Next, the motion should have been sustained, for the reason that the only theory on which Pete Martin could be said to have been an employee of the defendant bridge company was a presumption raised by the fact that at some time he collected toll for the bridge company, acting in the place and stead of his father, Geo. Martin, who was an employee of the bridge company. This presumption was destroyed by the positive testimony of George Martin and George Key.

To hold the Ada-Konawa Bridge Company liable for the acts of a man who was not an employee, who was acting in his own behalf, without the knowledge or consent of the owners of the bridge company, is fixing a responsibility on the bridge company without its knowledge or consent or without the knowledge or consent of its owners.

I am of the opinion that this cause should be reversed and remanded to the district court of Pontotoc county, with directions to dismiss plaintiff's petition.