CHICAGO, R.I. P. RY. CO. v. BROOKS ET AL

13 Citing cases

  1. Kansas, O. G. Ry. Co. v. Pruitt

    128 P.2d 231 (Okla. 1942)   Cited 4 times

    Thus it is apparent that defendant's contention on this point, if it has any force whatever as a defense or contention, is a purely technical one, as we have said in former opinions. Chicago, R.I. P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362. If it is defendant's position that in order to be approved as sufficient, the plaintiff's evidence must negative such an appointment in every county of the state, we observe it could not have been so intended by the legislative enactment. The defendant does not here so contend, but in no other way could the plaintiff completely and positively prove the absence of any appointed administrator or personal representative.

  2. Sanders v. Chicago, R.I. P. Ry. Co.

    169 P. 891 (Okla. 1917)   Cited 3 times

    Proof of this allegation was necessary, and upon their failure to establish the same by the evidence, one of the essential elements necessary to be proved was lacking, and the trial court properly sustained a demurrer to the evidence for that reason, as the demurrer filed by the defendant in error specifically alleged that the plaintiffs in error failed to prove nonadministration as alleged in the petition. The following authorities support the doctrine as announced: Frederick Cotton Oil Co. v. Clay, 50 Okla. 123, 150 P. 451; C., R.I. P. R. Co. v. Brooks, 57 Okla. 163 156 P. 362; Shawnee G. E. Co. v. Motsenbacker, 41 Okla. 454, 138 P. 790; Big Jack Mining Co. v. Parkinson, 41 Okla. 125, 137 P. 681; Bartlett v. C., R.I. P. R. Co., 21 Okla. 415, 96 P. 468; Missouri, K. T. R. Co. v. Lenahan, 39 Okla. 283, 135 P. 383; City of Eureka v. Merrifield, 53 Kan. 794, 37 P. 115; Walker v. O'Connell, 59 Kan. 306, 52 P. 894. The judgment of the lower court is affirmed.

  3. Detrixhe v. McQuigg

    316 P.2d 617 (Okla. 1957)   Cited 5 times

    "* * * when such confusion is created by a conflict between the special findings and the verdict as to indicate that the jury did not intelligently consider the case and the trial court so finds or should so find in the exercise of judicial discretion, a new trial should be ordered." Other cases also involving this same fundamental proposition but different circumstances calling for its application are: West v. Abney, 203 Okla. 227, 219 P.2d 624; Riedt v. Winters Drug Co., 191 Okla. 264, 128 P.2d 1008; Maly v. Lamerton, 113 Okla. 168, 240 P. 716; Chicago, R.I. P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362. Adverting to the instant action, we are aware that separate actions consolidated for the purpose of trial do not ordinarily lose their individuality.

  4. Cook v. Knox

    273 P.2d 865 (Okla. 1954)   Cited 12 times

    The administrator in the present proceeding was duly appointed as administrator by the County Court of Beaver County, Oklahoma, and was the qualified and acting administrator in the filing and maintenance of the present action. Numerous cases are cited by Cook of which Chicago, R.I. P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362, is illustrative, to support his contention that the present action could not be maintained by the administrator. The cited case and others relied upon hold that in an action for wrongful death brought by the widow, and where it is alleged that no personal administrator has been appointed, but there is a total failure of proof with reference to such appointment, that a recovery could not be had. The reason for the rule stated is that if there is a personal representative of the deceased, that the widow has no right of action.

  5. S. H. Kress Co. v. Maddox

    203 P.2d 706 (Okla. 1949)   Cited 12 times
    In S.H. Kress Co. v. Maddox, 201 Okla. 190, 203 P.2d 706, we pointed out that knowledge and appreciation of the danger is an essential element of the doctrine of assumption of risk; that such doctrine does not apply unless the party alleged to have assumed such risk is found to have known of, or can be charged with, knowledge of the risk.

    In view of our holding that there was competent evidence on the issue of negligence, which presented an issue for the jury, it follows that the proposition is without merit. When the jury returned its verdict which was against the defendant but in favor of codefendant M.Q. Davis, defendant moved the court to instruct a verdict for defendant, and the refusal of the court to so do is urged as error on authority of Chicago, R.I. P. Ry. Co. v. Brooks et al., 57 Okla. 163, 156 Pa. 362, wherein it was held: "Where a railroad company is joined as a codefendant, on the theory of respondeat superior, with one of its em-employees in an action to recover damages for the death of one whose death is alleged to have been caused by a wrongful act of such employee a verdict rendered on the trial of the case in favor of the employee and against the plaintiff on the issue of the alleged wrongful act of the employee is equivalent to a finding in favor of the railroad on that issue, and a verdict against the railroad on that issue will not be permitted to stand."

  6. Oklahoma Gas Electric Co. v. Spiva

    80 P.2d 941 (Okla. 1938)   Cited 2 times
    In Oklahoma Gas Electric Co. v. Spiva, 183 Okla. 253, 80 P.2d 941, and in numerous other cases cited in that opinion, we held that the failure to prove that an administrator had not been appointed, in an action brought by the surviving widow for the death of her husband, is not harmless error.

    This court has consistently held that such failure constitutes reversible error. Frederick Cotton Oil Co. v. Clay (1915) 50 Okla. 123, 150 P. 451; C., R.I. P. Ry. Co. v. Brooks (1915) 57 Okla. 163, 156 P. 362; Sanders v. C., R.I. P. Ry. Co. (1917) 66 Okla. 313, 169 P. 891; Whitehead Coal Co. Winton (1924) 107 Okla. 99, 230 P. 509; White v. McGee (1932) 157 Okla. 204, 11 P.2d 924; Oklahoma City v. Richardson (1937) 180 Okla. 314, P.2d 334. We decline to depart from the rule laid down in those cases.

  7. Midland Valley R. Co. v. Townes

    64 P.2d 712 (Okla. 1937)   Cited 10 times
    In Midland Valley R. Co. v. Townes, Adm'r, 179 Okla. 136, 64 P.2d 712, this court refused to review the finding of the jury as to whether contributory negligence had been established.

    Defendant points out that the former action was by the widow, while this one is by the administrator; that no administrator had been appointed when the former action was dismissed; that if in the former action the widow had alleged the existence of an administrator she would have pleaded herself out of court, as being without capacity to sue; that therefore the fact which plaintiff was bound to prove in this action (his appointment) would have defeated the other action, and for that reason they are not the same causes of action. Taking it as true that the widow could not have maintained the former action if she had not alleged that no administrator had been appointed, or if she had failed to prove such negative fact (C., R.I. P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362), does it follow that a new cause of action has now been stated? We think that in all substantial essentials pertinent to the cause of action itself, as distinguished from the question of the proper party to bring the action, the present action is the same as the former.

  8. Consolidated Gas Utilities Co. v. Beatie

    27 P.2d 813 (Okla. 1933)   Cited 15 times
    In Consolidated Gas Utilities Co. v. Beatie, 167 Okla. 71, 27 P.2d 813, an action was brought against the company upon the principle of respondeat superior, and the company's employee was joined as a co-defendant.

    "In action for personal injuries, where the master and his servants are charged with the commission of acts of negligence which caused the injury complained of, for which suit is instituted against all, and where the master, if liable, is so upon the principle of respondeat superior, it is error to render a judgment against the master upon a verdict of the jury which found against the master and in favor of the servants, as the servants' responsibility is primary, inasmuch as they committed the act, and the master's is secondary, in that he has done no wrong morally, but is answerable for the servants' act." See, also, Chicago, R.I. P. R. Co. v. Rhinehart, 61 Okla. 72, 160 P. 51; Chicago, R.I. P. R. Co. v. Brooks, 57 Okla. 163, 156 P. 362; Chicago, R.I. P. R. Co. v. Austin, 43 Okla. 698, 144 P. 1069; St. Louis S. F. R. Co. v. Williams, 55 Okla. 682, 155 P. 249; Callahan v. Graves, 37 Okla. 503, 132 P. 474; N. O. N.E. R. Co. v. Jopes, 142 U.S. 18, 12 Sup. Ct. 109, 35 L.Ed. 919. Plaintiff contends that this case is controlled by an exception to the above rule which is announced in the case of Spruce v. Chicago, R.I. P. R. Co., 139 Okla. 123, 281 P. 586, in which it is said:

  9. White v. McGee

    11 P.2d 924 (Okla. 1932)   Cited 8 times

    Such allegations were in issue, and, if it was necessary to allege the same, it was necessary likewise to submit proof in support thereof, before a recovery could be had. Upon the failure of such proof a demurrer to the evidence of the plaintiff should have been sustained. See City of Eureka v. Merrifield et ux., 53 Kan. 794, 37 P. 113; Walker v. O'Connell, 59 Kan. 306, 52 P. 894; Atchison Water Co. v. Price (Kan. App.) 59 P. 677; Bastine v. A., T. S. F. Ry. Co., 71 Kan. 854, 80 P. 1133; Frederick Cotton Oil Mfg. Co. v. Clay, 50 Okla. 123, 150 P. 451; C., R. I. P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362; and Vaughn v. Kansas City N.W. R. Co. (Kan.) 70 P. 602. It was incumbent upon the plaintiff to make such proof.

  10. Missouri, K. T. R. Co. v. Perino

    89 Okla. 136 (Okla. 1923)   Cited 24 times

    Section 5282. Rev. Laws 1910; Frederick Cotton Oil Mfg. Co. v. Clay, 50 Okla. 123, 150 P. 451; Chicago, R.I. P. Ry. Co. v. Brooks, 57 Okla. 163, 156 P. 362: Sanders v. Chicago. R.I. P. Ry. Co., 66 Okla. 313, 109 P. 891. So it becomes necessary to determine the effect of this amendment.