Jackson v. Little

Opinion by LOGSDON, C. First to be considered in this case is a motion by defendant to dismiss the appeal for the reason that i't appears affirmatively that the case-made was not filed in the office of the court clerk after the same was settled and signed by the trial judge. This motion would have to be sustained were it not for the fact that this court on September 2, 1924, on motion of plaintiff, entered its order permitting the case-made to be withdrawn for the purpose of amending the same by having placed thereon the file mark of the court clerk in conformity with the record in that office, it appearing that the civil appearance docket showed at page 261 that this case-made was filed November 9, 1923, and that it vas withdrawn for filing in this court. By virtue of the *71 provisions of Comp. Slat. 1921, sec. 786, this amendment was proper and cured the defect. The motion to dismiss should therefore be denied. McCann v. McCann, 96 Okla. 250, 221 Pac. 499. Upon the merits of the case, plaintiffs first complaint is against the action of the trial court in sustaining the separate demurrers of defendants Missouri, Kansas & Texas Railway Company and J. H. Little to the evidence, of plaintiff. As to the action of the, trial court in sustaining the demurrer to plaintiff’s evidence as against the defendant, Missouri, Kansas & Texas Railway Company, it is not considered that any prejudicial error was committed in this respect. The testimony introduced on behalf of plaintiff showed conclusively that the Missouri. Kansas ° Texas Railway Company was in the hands of a receiver long prior to the employment of plaintiff, and that such receivership continued during all of the time that he was so employed and thereafter. The possession of the receiver is not the possession of the corporation, but is an adverse possession, and the corporation as an entity exercises no control whatsoever over the receiver or his employes. The wrongful act complained of by the plaintiff was committed by employes, and the railroad's property being then in the hands of a receiver, the railroad company, as a corporate entity, owed no duty to the plaintiff which the acts of the receiver’s employes could violate. The action of the trial court in sustaining the demurrer of defendant J. H. Little to plaintiff’s evidence is deemed to have been erroneous upon the state of the record at the close of plaintiff’s testimony. Defendant Little was placed upon the stand as a, witness for the plaintiff, and the following excerpts from his testimony are believed to demonstrate the error of the court in sustaining his demurrer to the plaintiff’s evidence. It appears from his testimony that one Ross, who was chief clerk in Little’s office, wrote the letter complained of, and while Mr. Little asserted that, he knew nothing of the writing of the letter it is disclosed by his testimony that he did know of facts and circumstances which reasonably charged him with knowledge of the writing of said letter, to which his name was signed by Ross with full authority. The material portions of his testiomny are as follows: On direct examination: “Q. Did you find who wrote it? A. That is, as a matter of (fact) at that time, yes, sir. Q. Who did you find wrote it? A. Wrhy, Mr. Ross, it appears, the chief clerk in the office, dictated the letter. Q. Mr. Ross had authority under you to write the letter? A. He is chief clerk of the division office of this railroad and has charge of the clerks, to employ. Q. Under you? A. Yes, sir. Q. And in your name to employ and discharge parties under your division- or under your jurisdiction. A. Those coming under his jurisdiction, yes, sir. Q. Well, under your jurisdiction; you have jurisdiction ovei; him? A. Yes, sir. * * * Q. Did you have any talk with your chief clerk about these things, beginning in the matter of Mr. Jackson wasn’t working satisfactorily and he wasn’t a stenographer and he put his feet on the desk and that he received notice from time to time standing around looking out the window and that somebody else saw him quit early; you knew about those things, did you, and discussed them with your chief clerk? A. To some extent I did; I complained to the chief clerk that I had seen Mr. Jackson sitting in his office not engaged, and on one occasion I complained to the chief clerk that Mr. Jackson was apparently not kept very busy, and I complained to "him that I saw him sitting at his desk looking out of the window and on one or more occasions saw him with his feet on the table when I knew there was plenty to do in that office to keep every person there busy, and I complained to the chief clerk along those lines.” On cross-examination: “Q. Now, you .stated, I think, on direct examination that you had some conference with Mr. Ross and about a Mr. Bawart taking this place that was held by Mr. Jackson; if you recall state what that was. A. On or about the middle of November, I don’t recall just what time, the chief clerk mentioned it to me that Mr. Bawart had filed an application in writing, in line, or in compliance with the clerk’s national agreement to exercise his seniority, and he requested that he be permitted to bump Mr. Jackson and take charge of that job because he was the senior employe, and I said to the chief clerk that that is all right: that if Mr. Ba-wart was a senior employe he had that right to place himself according to the seniority, and I had that understanding with the chief clerk about the middle of November; I don’t recall exactly what date.” On re-direct examination: “Q. You did know then prior to the writing of this letter, that was just an ultimate penalty, you were going to bump Jackson and put Bawart in: you ancl the chief clerk had’ discussed that, had you not? A. I knew it to this extent: Bawart was going to .exercise his seniority and bump Mr. Jackson. Q. And you told the chief clerk that would be all right? A. I attended to the change all right. Q. And that was before this letter was written? A. Now. I can’t say just what time that took place, but it was about the middle of November or a little later or *72 sometime in November; a very short time before M,r. Jackson was disposed of. * * * Q. But you told the chief clerk to see that the bumping went on ? A. He knew; I didn’t tell him about it: it went on when lie said to me Mr. Bawart desired to exercise hid seniority, and I gave him permission.” It is thus clearly apparent froml the testimony of defendant Little that his chief clerk, Boss, believed that he had authority from Little to write the letter in question. Practically every substantive matter contained in the letter had been discussed between Little and Ross, and some of these matters had been first broached by Little himself in the form of complaints to Ross about Jackson’s Idleness. Whether Ross exceeded his authority in incorporating in the letter the substance of these private conversations with his superior is not material to the present inquiry, but that he had express as well as implied authority to write the letter cannot be seriously questioned under the evidence above quoted. This being true, the act of Boss was the act of Little, and if the letter written by Ross constituted an actionable wrong against Jackson, it follows that Little would be jointly and severally liable. The jury might, and probably did, consider that if the defendant who was directly responsible for the writing of the letter was not legally liable therefor the receiver should not be held liable. That the demurrer must have been sustained on the sole ground that Little did not write the letter is evident from the fact that the court overruled the demurrer of the receiver on exactly the same evidence. This error of the court is therefore deemed to have been prejudicial to the substantial rights of the plaintiff. This action of the trial court was duly excepted to, was called specifically to the attention of the trial court in the motion for new trial, and is preserved in the petition in error filed in this court. While it is true, that the case-made as originally filed in this court d'd not show any exception to the overruling of the motion for new trial, this court made an o¡rder .permittir" *he case-made to be withdrawn for eorreatlkun in this respect. This has been done, and the case-made as amended has been again certified by the trial judge, the transcript of the proceeding showing that exception was duly reserved to the action of the trial court in overruling the motion for new trial. The showing made on the proceeding- to amend the case-made is deemed sufficient to sustain the amendment. The second assignment of error complains of the refusal of the trial court to give certain requested instructions, but this assignment cannot be considered here for the reason that no requested instructions are contained in the case-made. The third assignment of error complains of the giving of certain instructions numbered 1 to 13, both inclusive, 'but this assignment is likewise unavailable in this court for the reason that it is disclosed by the ease-made that no exceptions were reserved to the giving of such instructions. This condition of the record likewise precludes this court from considering and passing trpon the fourth assignment of error, which reads: “Said court erred in rendering judgment for the defendants in error and against the plaintiff in .error for that such judgment was contrary to the evidence and not sustained by the evidence and the same is not sustained by the law, but the same is contrary to the law.” Because of the error of the trial court in sustaining the -demurrer of the defendant Little toi the evidence of the plaintiff, which error is1 deemed to have been prejudicial to the substantial rights of the plaintiff, this cause should be reversed and remanded for a new trial. By the Court: It is so ordered.