This аction was brought by Della Sims, hereinafter referred to as plaintiff, against Subscribers at Casualty Reciprocal Exchange, a foreign corporation, J. Tom Powell and Pauline Wadley, co-partners, d/b/a Yellow Cab Company, and Dewey B. Haley, hereinafter referred to as defendants, to recover damages for personal injuries allegedly sustained by plaintiff in an automobile collision. Plaintiff was riding in 'an automobile driven by her son, Lloyd Henry Sims, in a westerly direction on Sixth Street in the City of Okmulgee, Oklahoma, when such automobile collided with a taxicab owned by defendants J. Tom Powell and Pauline Wadley and being driven in a northerly direction on Central Street by .defendant Dewey B. Haley. The collision occurred at the intersection of Sixth and Central Streets in the City of Okmulgee.
After trial to a jury, a verdict for plaintiff ’ and against ■ defendants was rеturned upon which judgment was rendered and defendants appeal.
As their first proposition of error, defendants contend that the instructions as a whole were not sufficient to advise the jury of the issues involved in the cause. Such contention appears to.be well taken.
It appears from plaintiff’s petition, defendants’ answer, and the evidence intro-' duced at the trial, that a decisive issue was made upon the question of which vehicle had the right of way. Plaintiff’s petition' alleges that the vehicle in which she was riding had entered and was crossing the intersection of Sixth Street and Central Street when the defendants’ taxicab entered such- intersection and negligently collided with the vehicle in which plaintiff was riding;, that the defendant taxicab driver was negligent in that he entered the intersection at a high and unlawful rate of speed and withоut first coming to a stop and drove the taxicab into and against the vehicle in which plaintiff was riding, which said vehicle had the right of way over the taxicab. Defendants answered by denying that the defendant taxicab driver was in any way negligent and alleging that the collision was caused solely by the negligence of the driver of the vehicle in which plaintiff was riding in that such driver was driving at a high and dangerous rate of speed; in excess of the speed limit, and that such driver did not have his vehicle under complete control and violated the right of way regulations contained in the appropriate city ordinances. ‘Defendants also pleaded contributory negligence on the part of the plaintiff.
The evidence adduced at the trial established without dispute that the defendant taxicab driver came to a complete stop bеfore entering the intersection; that he then shifted into low gear and proceeded across the intersection at a speed of not. over- ten miles per hour; that after the taxicab had crossed over more than half of the intersection it was struck in the right side by the vehicle in which plaintiff was riding so violently that the taxicab was knocked sideways some ten to eighteen feet. The evidence as to the speed of the vehicle in which plaintiff was riding varied from an estimate of between IS and 20 miles per' hour given by plaintiff and the driver of the vehiсle in which she was riding to an estimate of SO miles per hour given by a by-stander eye witness to the collision. By city ordinance, the speed limit at the time and place of the collision was 15 miles per hour.
It is apparent that the issue of which vehicle had the right of way was a decisive issue in the case. Plaintiff contended that Sixth' Street, upon which she was traveling, was a boulevard or protected through street, and that the vehicle in which she was riding therefore had the right of way. There was, however, no ordinance introduced showing that Sixth Street had- in fact been dеsignated as a boulevard or protected through street, and defendants- contend that it had not been so designated and *581 that defendants’ taxicab, having entered the intersection first, had the right of way under the appropriate city ordinances.
Although the question of which vehicle had the right of way was the major issue in the case, an examination of the entire body of the court’s instructions reveals a complete absence of any instruction whatsoever relating to such issue. Such absence constitutes fatal error. Fisher v. Sturgeon,
“Raised by the pleadings and made a very vital issue in the evidence, was the question of who entered the intersection first and thus obtained the right of way by virtue of the above cited statute. The jury was not instructed on that issue. Plaintiff below, defendant in error here, argues that, since defendant did not request an instruction upon this issue, he cannot now be he.ard to complain, relying upon the cases of Armstrong v. Green,113 Okl. 254 ,241 P. 789 , and Haynie v. Olson Drilling Co.,189 Okl. 527 ,118 P.2d 230 , among others. An examination of these cases, however, will reveal that in them, the violation of the rules of the road was not made an issue by the pleadings and evidence as was done in the case at bar. That is pointed out in the first above cited case in distinguishing it from the earlier case of Oklahoma Producing & Refining Corporation v. Freeman,88 Okl. 166 ,212 P. 742 .
“The instant case is almost identical to, and is controlled by the case of Riser v. Herr,187 Okl. 211 ,102 P.2d 178 , 180, wherein it was said: ‘Upon the foregoing considerations, we conclude that the trial court erred in failing to instruct the jury as to which of two vehicles had the right of way, if they found that one of them entered the intersection before the other. * * * It is the duty of the court without a requеst and upon its own initiative to
instruct the jury upon all of the vital factors of the tenable legal theories of both litigants concerning the issues of fact.’ ”
As their second proposition, defendants contend that the court erred in overruling their separate demurrers and motions fоr a directed verdict. Such proposition is based on defendants’ contention that it was improper to join the defendant Subscribers at Casualty Reciprocal Exchange as a named party defendant in the action. Subscribers at Casualty Reciprocal Exchange is the liability insurance carrier for the defendants J. Tom Powell and Pauline Wadley, co-partners, d/b/a Yellow Cab Company. The City of Okmulgee had an ordinance requiring, as a condition precedent to the issuing of a license to operate a taxicab, the filing of an insurаnce policy with the city clerk, providing insurance coverage for each and every taxicab owned, operated or leased by the applicant, with a liability coverage of not less than five thousand dollars for the injury or or death of any one person. The defendant taxicab company had filed such a policy, issued by defendant Subscribers at Casualty Reciprocal Exchange, with the city clerk. Plaintiff contends that under such circumstances the joinder of the insurance company as a party defendant was proper. We have so held in Safeway Cab Co. v. McConnell,
Such contention аppears to be well taken. A city has only such authority to regulate taxicabs and other vehicles operating on its streets as has been granted by the legislature. Martin v. Rowlett,
“Repealing Clause. Sections 221, 222, and 223, Title 47, O.S.1941, and all other laws or parts of laws in conflict herewith are hereby repealed.”
In lieu of the repealed statute, the legislature enacted a statute now found at
The repeal of a statute under which an ordinance was enacted impliedly repeals the ordinance, where the statute is the only basis of municipal power and its repeal leaves the municipality without рower to enact such ordinance. McQuillin, Municipal Corporations, 3rd Edition, Vol. 6, p. 272; City of Morganfield v. Wathen,
Plaintiff argues that the question of defect of parties defendant cannot be raised for the first time on appeal and that a general demurrer does not raise the question of defect of parties. Both of such contentions are undoubtedly correct, but we fail to see their application here. Defendants raised the issue of misjoinder of parties defendant by their motion to strike the defendant insurance company as a party defendant. The court overruled such motion and defendants excepted to such ruling, thus preserving their recoid. Thе question is therefore not presented for the first time on appeal. Wa have repeatedly held that a motion to strike is a proper way to attack a misjoinder of parties defendant. Barton v. Harmon,
As the other alleged errors complained of, such аs the introduction in evidence of a picture of plaintiff’s twin sons, will probably not occur upon a new trial, we do not find it necessary to deal with them herein.
The judgment is reversed and the cause remanded with instructions to sustain the motion to strike the defendant insurance company as a party defendant and to grant the remaining defendants a new trial.