Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


February 7, 1958


The opinion of the court was delivered by: John E. Miller, District Judge.

This is an action by the plaintiff, Cleve Carl Wright, a resident of Tulsa, Oklahoma, against the defendant, Imogene Walling, a resident of Fort Smith, Arkansas, wherein plaintiff seeks to recover a judgment in excess of $3,000 for personal injuries he sustained as a result of an automobile accident occurring on August 9, 1956. Among other things, plaintiff alleges:

    "That on or about the 9th day of August, 1956,
  while driving his Nash automobile in low gear
  toward the curb in front of 1108 Forest Drive,
  Sand Springs, Oklahoma, on his proper right hand
  side of said street, his machine was struck from
  the rear and collided with by a Buick automobile,
  owned and being operated by defendant, Imogene
  Walling, causing plaintiff's head to strike some
  portion of the door, resulting in severe pain
  above both eyes and inducing a recurrence of his
  left supraorbital neuritis, necessitating an
  operation on plaintiff's brain for a removal of a
  section of the left supraorbital nerve, requiring
  plaintiff to be hospitalized."

Plaintiff further alleges that the defendant was guilty of negligence in failing to maintain a lookout, failing to keep her vehicle under control, and operating her vehicle in a reckless manner.

In due time the defendant filed a motion to dismiss or in the alternative for summary judgment in her favor, attaching to said motion certain exhibits in support thereof. The parties have filed briefs in support of and in opposition to said motion, and it is now before the Court for final disposition.

Since the Court is called upon to consider matters outside the pleadings, the Court is treating defendant's motion as one for summary judgment under Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A. See, Rule 12(c), F.R.C.P. Defendant is entitled to a summary judgment in her favor if, and only if, there is no genuine issue as to any material fact and she is entitled to a judgment as a matter of law.

The material facts controlling the validity of defendant's motion are undisputed, and are as follows:

On August 13, 1956, Roy Walling and Imogene Walling filed an action against C.C. Wright in the Justice of the Peace Court for District No. 11, Division 2, Tulsa County, Oklahoma.

On August 15, 1956, Roy and Imogene Walling, husband and wife, employed Jesse D. Swift, an attorney residing in Sand Springs, Oklahoma, to prosecute their suit against C.C. Wright (who is the same person as the plaintiff herein, Cleve Carl Wright).

On August 18, 1956, C.C. Wright, through his attorney, Donald Church, filed an answer in the Justice of the Peace Court denying that he was guilty of any negligence, and alleging that the negligence of Mrs. Roy Walling (Imogene Walling) was the proximate cause of the accident and resulting damages. Wright specifically alleged that Mrs. Walling drove at an excessive rate of speed; failed to yield the right of way; failed to keep a proper lookout; failed to use ordinary prudence to avoid the accident; and failed to keep her vehicle under proper control.

    "The trial came on for hearing at 9:00 a. m.
  whereupon it appeared by the plaintiff's evidence
  that a certain accident occurred involving the
  defendant's car and the plaintiff's car. It
  appeared by the undisputed testimony of the
  plaintiff's witness that the accident was caused
  by the defendant's negligence and that the
  plaintiff was damaged in the amount prayed for in
  the plaintiff's Bill of Particulars. The
  defendant's demurrer to the evidence was
  overruled; the defendant elected to stand on his
  demurrer without presenting any evidence,
  whereupon judgment was entered against the
  defendant in the amount of $175 and costs of the
  action. By oral motion in open court the
  defendant gave notice of his intention to appeal
  this action to the Common Pleas Court of Tulsa

On August 21, 1956, Robert R. Cress, an attorney residing in Tulsa, Oklahoma, wrote a letter to the Wallings' attorney, Jesse D. Swift, advising that Cress represented C.C. Wright; that Wright was injured in the collision; that Cress claimed an attorney's lien upon any moneys paid Wright in settlement or compromise; and stating that he (Cress) would be glad to discuss the matter with Mrs. Walling's liability carrier.

On December 12, 1956, an appeal bond and a transcript of the proceedings in the Justice of the Peace Court were filed in the Court of Common Pleas for the County of Tulsa, State of Oklahoma.

On May 9, 1957, Roy and Imogene Walling filed an amended petition against C.C. Wright in the Court of Common Pleas, alleging, among other things:

    "That on or about the 9th day of August, 1956,
  Imogene Walling was driving her car in an
  easterly direction on Forest Drive Avenue in the
  City of Sand Springs, Oklahoma, and that while so
  proceeding with due caution her car was struck on
  the right hand side thereof by a car driven by
  the defendant, C.C. Wright. That the said
  defendant, without looking, did carelessly and
  negligently back his car from the private
  driveway of his property, which property is
  located in the City of Sand Springs, Oklahoma on
  Forest Drive Avenue, aforesaid, without signaling
  or making any warning whatsoever and backed into
  the car driven by the plaintiff which was then
  passing in front of said driveway. That as a
  result of the defendant's negligence aforesaid,
  his car struck that of the plaintiff damaging the
  right hand side thereof to the extent of $125."

Wright filed a demurrer, which was overruled, and on June 17, 1957, Wright, through his then attorney, Windell D. Knox, filed an answer denying generally and specifically each allegation contained in plaintiffs' petition.

On October 23, 1957, the case was tried in the Court of Common Pleas for Tulsa County, Oklahoma. Prior to the trial leave was granted to Roy Walling to withdraw as a party plaintiff. The parties waived a jury, and the case was tried to the court. The "Journal Entry of Judgment" of the court is as follows:

    "Now on this 23rd day of October, 1957, the
  above styled matter came on regularly for trial,
  the plaintiffs appearing by their attorney, Jesse
  Swift, and the defendant being present in person
  and by his attorney, Windell D. Knox, and both
  parties announcing ready for trial, the jury
  being waived, the defendant's counsel made a
  motion to strike the portion of the plaintiffs'
  petition alleging damage for misinformation, and
  said defendant's motion being sustained, and the
  plaintiffs being allowed to amend their petition
  to show a cause of action for damages not to
  exceed $80.02, and the plaintiffs having
  introduced sworn testimony,

  and after argument made by counsel, the Court
  being fully advised in the premises, finds the
  actions sufficient for granting a judgment to the
  plaintiffs for $75.11;
    "It Is, Therefore, Accordingly Ordered,
  Adjudged and Decreed that judgment in the amount
  of $75.11, plus all court costs of this action,

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.