This action arose out of a collision between a Chevrolet Sedan, driven by defendant in error, and a Ford Sedan, driven by one Ira Elliott Fowler and owned by plaintiff in error. When defendant in error instituted this action as plaintiff to recover damages for personal injuries she allegedly received in the collision, she named both Fowler and plaintiff in error as defendants, but service on Fowler was never obtained, and the case went to trial with plaintiff in error the only defendant. ■ Ou'r further use of the latter term will accordingly refer only to the Ford owner.
In his verified answer, defendant denied, among other things, that he was guilty of any negligence connected with the collision and specifically denied that, when it occurred, Fowler was his agent, servant or employee.
At the trial, it was established that, when the collision occurred, Fowler was driving the Ford to his home, after using it that day as a taxicab, in the service of Your Cab Company. No relationship or connection, however, was established between defendant (the Ford’s owner) and Fowler or Your Cab Company, or its business of transporting people for hire. When Fowler, the only defense witness, was asked how long he had been driving a cab, he testified : “Oh, about eight years.” Later, when asked how long he had been driving the Ford, he answered: “Oh, about a year or more.”
After plaintiff rested her case, the court overruled a demurrer by defendant to her evidence; and, thereafter, before the case was submitted to the jury, the court also overruled a motion, interposed by him for a directed verdict; and told the jury, by his Instruction No. 7, that, under the evidence, Fowler was defendant’s agent and employee and was acting within the scope of his authority while driving the Ford as a taxicab. After a verdict and judgment for plaintiff in the amount of $2,500 and costs, and the overruling of defendant’s motion for a new trial, the latter perfected the present appeal.
For reversal of the judgment, defendant argues three propositions, but argument as to the first one sufficiently demonstrates the trial court erred in overruling his motion for a directed verdict, that it is unnecessary to mention or discuss the other two. As showing that the evidence failed to make out a prima facie case for plaintiff’s recovery against him, defendant cites Stumpf v. Montgomery,
“When the plaintiff has suffered injury from the negligent management of an automobile, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the car without proving affirmatively that the person in charge was the defendant’s servant.”
Plaintiff’s counsel, on the other hand, contends that defendant’s argument confuses “two principles of law”; one dealing with the sufficiency of evidence to support a presumption of agency for the purpose of upholding a verdict; the other dealing with the sufficiency of evidence to support such presumption, for the purpose of establishing a prima facie case and withstanding a demurrer, or motion for a directed verdict. Counsel cite no legal basis for the inference that proof of defendant’s ownership of the vehicle, without more, may be sufficient for one of these purposes, without being sufficient for the other; and such argument does nothing to advance, or support, their proposition. They also say that the Stumpf case only “modified”, rather than “overruled” the Boling case, supra; and, in an apparent effort to show that the rule followed in the latter case is still in force, they cite the more recent case of Sheppard v. Hall, Okl.,
“In the Stumpf Case, supra, this court, in overruling a former decision, Boling v. Asbridge,84 Okl. 280 ,203 P. 894 , said: ‘And that the opinion is hereby modified to the extent of holding that before the negligence of the driver of an automobile is imputed to the owner of the car, it is necessary to prove that the defendant was the owner of the car and that the relation, of master and servant existed between the driver and the owner of the car, which proof raises a presumption that at the time of the accident the driver was acting for the owner and within the scope of his authority.’ ” (Emphasis ours).
The citation of the Boling case, supra, in the Sheppard case, supra, was not only unfortunate because of its misleading effect,, but it was unnecessary, because, in the latter case, the evidence revealed more than merely the defendant’s ownership of the car involved — it also tended to show that he was the car driver’s master, principal, or employer. As hereinbefore indicated, there is no such evidence in this case.
Plaintiff’s brief reminds us, however, that, in the present case, “there was-additional evidence” besides the established' fact of defendant’s ownership of the car involved. One bit of evidence she doesn’t specifically mention, but which might be regarded as pertinent in some jurisdictions-(where the defendant car owner’s knowledge and/or consent to its use by the driver,, is sufficient to render him liable for the-driver’s negligence) is the afore-quoted! testimony of Fowler that he had driven defendant’s car “ * * * a year or more.”' Assuming, without deciding, that this testimony was sufficient basis for an inference that defendant must have known Fowler had the car, and, even assuming its sufficiency to support the further conclusion: that he must have known Fowler was using; it in the Your Cab Company’s service, such; testimony would not be enough, when; coupled with the fact of defendant’s ownership, to render him liable. In this State “ * * * the fact that the operator is in charge of the automobile with the owner’s consent raises no presumption of agency.”'
*349
Randolph v. Schuth,
“The rule is well established in this jurisdiction that mere proof of ownership of an automobile is not sufficient to raise the presumption that at the time of an accident it was being operated by an agent of the owner or in the course of the owner’s business. * * * “In applying the rule we see no sound, reason for drawing a bare distinction between a pleasure car and a commercial vehicle in the absence of facts from which it could be presumed that the commercial vehicle was being used in the course of the owner’s business.” (Emphasis ours.)
As hereinbefore indicated, there is no evidence in this case that the defendant owner of the car involved is an owner of Your Cab Company or has any interest in, or connection with, the taxi business. While there seems to be a conflict of opinion among the appellate courts of some of the states as to just what inferences, or presumptions, if any, arise in cases where the vehicle owner operates, or is connected with, the same kind of business in which the vehicle was engaged at the time of the accident (see Middletown Trust Co. v. Bregman,
We are unable to agree with plaintiff counsel’s apparent idea that testimony in this case concerning whether or not Fowler, at the moment of the collision, was acting as a taxi driver, or was on a private mission, takes this case out of the operation of the rule in the Stumpf case, supra. The significant fact that there is insufficient evidence from which it could be inferred that Fowler was the Ford owner’s agent at any time of the day of the collision, renders that testimony immaterial as concerns the principal question at issue. While plaintiff boldly asserts that there doubtless exists some association between the management, or ownership, of the Cab Company and the owner of some of the cars used in its service, she admits she “has not been able to define such relationship * *
Plaintiff can obtain no support for her position in cases like Oklahoma City Const. Co. v. Peppard, 43 Old. 121,
In view of the foregoing, the trial judge should have sustained the defendant’s motion for a directed verdict. Because of this error and his giving of instruction No. 7, supra, it is obvious that he was not aware that, in this jurisdiction, defendant’s ownership of the automobile involved in the collision was insufficient, in and of itself, to render him personally liable for the negligence of its driver. Because of this error, the trial court should have sustained defendant’s motion for a new trial. The judgment is therefore reversed and the cause is remanded to the trial court with directions to vacate its previous order and grant a new trial.