This action was filed in the district court of Pontotoc county, to recover damages for personal injuries. The parties will be referred to as they appeared in the trial court. The plaintiff alleged that he was driving an automobile from his home in Seminole county to Ardmore; that while crossing the toll bridge across the Canadian river north of Ada, Okla., he was shot and received a flesh wound in the right arm above the elbow; that the shot was fired by one of the agents, servants, or employees of the defendant, and that said shot was fired with the willful, wanton, malicious, and negligent intent upon the part of said servant or employee of said defendant to strike, injure, and wound the plaintiff in utter disregard of the rights of plaintiff and that the plaintiff suffered serious, painful, and permanent injury. Plaintiff prayed for a judgment against the defendant company for the sum of $5,250 actual damages.
It appears that the petition named "McKeown Bridge Company, a Corporation," as defendant. A praecipe for summons was duly filed and summons issued to the sheriff of Oklahoma county, Okla., to serve said defendant company. The summons was served upon Geo. D. Key as service agent. Thereafter, on July 11, 1928, a special appearance and motion to quash said summons and return was filed. While this special appearance and motion to quash was pending, plaintiff, on September 26, 1928, filed a motion to substitute "Ada-Konawa Bridge Company" as defendant in the action. The court sustained said motion and directed that said bridge company, a common-law trust, be substituted as defendant in said action and directed that summons issue to the substituted defendant as the law directs. Subsequently, the praecipe for summons was filed directing the clerk to issue summons to the sheriff of Oklahoma county, state of Oklahoma, "to serve in his county on Ada-Konawa Bridge Company (serve Geo. D. Key), defendant in said cause." On October 24, 1928, summons was issued to the sheriff of said Oklahoma county "to notify Ada-Konawa Bridge Company (serve Geo. D. Key), etc." The sheriff's return is as follows:
"Received this writ Oct. 26, 1928, at _____ o'clock __________ m., and served the same upon the following person defendant, within named, at the times following, to wit:
"Ada-Konawa Bridge Company, by delivering a true copy to Geo. D. Key, in person, he being service agent for the above-named Ada-Konawa Bridge Company, Oct. 26, 1928, by delivering to said defendants, personally, in said county, a true and certified copy of the within summons with all the indorsements thereon.
"(Sgd.) Ben B. Dancy,
"Sheriff, "By (Sgd.) M.O. Baggerle,
"Deputy."
On November 26, 1928, the defendant filed a special appearance and motion to quash said summons. Said motion being as follows (omitting caption):
"Special Appearance and Motion to Quash Summons and Return: "Comes now Ada-Konawa Bridge Company, an express trust, appearing specially and for the purpose of this motion only, and moves the court to quash, set aside, and hold for naught the purported summons and purported service thereof, in the above-entitled cause, for the reason that the same was not issued, served, and returned according to law, and is insufficient to confer jurisdiction on this court.
"The copy of said purported summons *Page 124 delivered by George D. Key at Oklahoma City, Okla., by the deputy sheriff of Oklahoma county, Okla., is hereto attached, marked 'Exhibit A' and made a part of this motion.
"Wm. L. McCann, "Attorney for Ada-Konawa Bridge Company, an express trust."
(Exhibit "A" not being copied.) On April 24, 1929, the court overruled said motion, and the defendant was given time to plead or answer. The defendant thereafter filed its demurrer to plaintiff's petition on the ground that the facts set forth in plaintiff's petition were insufficient to constitute a cause of action in favor of the plaintiff and against the defendant The demurrer was overruled, and the defendant was given 20 days within which to answer. The plaintiff was allowed to amend his petition by interlineation showing the 'proper substituted name for the defendant. Defendant filed its answer. The first paragraph was a general denial. Defendant further alleged in the answer that the defendant company was the owner of and operating said toll bridge across said river and was the owner and operator of the bridge at the times complained of by plaintiff in his petition. Defendant further alleged in its answer that the plaintiff had willfully and fradulently passed the toll gate of defendant where toll is charged for crossing said bridge at the Seminole county end of said bridge, and at the time he received the injury complained of in his petition was crossing said bridge in an automobile without having paid the legal toll for crossing the same and was doing so willfully and fraudulently to escape paying said toll. Defendant specifically denies that the shot which plaintiff alleged struck and injured him was fired by any servant, or employee of said defendant.
Plaintiff filed a reply denying, the allegations of said answer except as admitted in plaintiff's petition, specifically denying that plaintiff at the time he was shot was willfully and fradulently attempting to escape paying the toll as alleged by defendant, and further alleged that the defendant had in all things ratified the willful, wrongful, malicious, and negligent act of its servant and employee in shooting the plaintiff.
The defendant thereafter, on January 28, 1930, filed a verified answer to the reply filed by plaintiff, being as follows (caption omitted):
"Answer to Reply Filled by Plaintiff Jan. 28, 1930.
"Comes now the defendant, Ada-Konawa Bridge Company, an express trust, and denies that it has at any time or in any manner ratified the act of Pete Martin, in firing the shot or shots, one of which struck and wounded the plaintiff, and further specifically denies that the said Pete Martin was, at the time the said shot was filed, a servant, agent or employee of this defendant."
"Wm. L. McCann, "Attorney for Defendant."
(Verification omitted.) The case came on for trial on January 28, 1930, and resulted in a verdict and judgment for plaintiff in the sum of $5,250. An appeal was duly lodged in this court.
As we view this record, counsel for plaintiff in error rely primarily on the proposition that the district court of Pontotoc county had no jurisdiction in this case; that the action was a transitory action and was required to be brought in the county in which the defendant or some of the defendants resided or may be summoned; that the defendant was an express trust, and had its principal office or place of business in Oklahoma county; that it maintained no office or place of business in Pontotoc county at any time, and that the toll house and gate where toll was collected was in Seminole county; that it was error on the part of the court to overrule defendant's special appearance and motion to quash the summons; that defendant saved its exceptions to said ruling; thereafter defendant demurred to said petition, which was overruled, and then filed its answer in said cause and insists that the objection to the jurisdiction was properly made and was never waived by defendant, and that this objection to the jurisdiction should have been sustained by the court.
Under this record, we conclude that this objection cannot be sustained. An examination of the special appearance and motion to quash does not in any manner direct the court's attention to any fact or circumstance which shows that counsel for defendant was relying on the question of venue. A motion to quash states that the summons ant purported service thereof be set aside for the reason "that the same was not issued, served, and returned according to law, and is insufficient to confer jurisdiction on this court." Had the question of venue in this transitory action been timely made, the defendant would have been entitled, as a matter of right or as a matter of privilege, to have had said cause dismissed in said county. The motion to quash was directed solely to the summons, not to the petition, and did not raise the *Page 125 question of jurisdiction over the defendant by reason of abuse of legal process issuing from one county to another, or on account of venue. Counsel for defendant contends that the question of venue was properly raised in said motion to quash and cites the case of Braden v. Williams, 101 Okla. 11,222 P. 948, to support their contention. However, an examination of this case shows that the defendant was served with summons on return day, and thereby was given one day less time within which to answer than as provided by law. The motion to quash was proper in that case and the issue was properly presented that the summons was not returned according to law. This was a jurisdictional defect. It has no application to the case at bar. In the instant case there is nothing wrong with the summons in reference to its being issued, served, and returned according to law. We think the rule was correctly announced in the case of Fisher v. Fiske, 96 Okla. 36, 219 P. 683. An examination of the record in that case shows that counsel in their motion to quash specifically raised the question of venue, and that by reason of nonresidence the district court of Tulsa county had no jurisdiction to hear and determine said case. That was an action to recover damages for personal injuries received in an automobile accident. One of the defendants was a resident of Tulsa county and the other defendants were nonresidents, and said nonresidents challenged the jurisdiction of the court over them. When the action failed as to the resident defendant, the nonresident defendants renewed their challenge to the jurisdiction of the court. In that case this court held that the court had no authority to render judgment against said nonresident defendants.
In the instant case, counsel for the defendant at the conclusion of the evidence introduced his special appearance and motion to quash, to which was attached the summons, and asked for a directed verdict on the ground the evidence had disclosed that this was a transitory action, and that the venue does not lie in the county in which the action was being tried, and that this question was raised by his special appearance and motion to quash. We do not consider this question was timely presented.
In the case of Patrick v. Williamson, 19 App. Div. 451, 46 N. Y. S. 504, the Supreme Court of that state, in the second paragraph of the syllabus announced the following:
"Upon a special appearance, for the purpose of testing the jurisdiction of the court over the person of the defendant, the motion should distinctly and definitely point out the defect upon which it relies, and all other objections are waived by a subsequent general appearance."
In the case of Bankers' Surety Co. v. Town of Holly, 219 Fed. 96, the Circuit Court of Appeals (Eighth Circuit) said:
"A motion to quash the service of process must distinctly point out the defects in the service, and nothing beyond the scope of the motion will be considered. Cheney v. Chicago City Nat. Bank, 77 Ill. 562; Smith v. Delane, 74 Neb. 594, 104 N.W. 1054; Bucklin v. Strickler, 324 Neb. 602, 49 N.W. 371; Brown v. Goodyear, 29 Neb. 376, 45 N.W. 618; Freeman v. Burks,16 Neb. 328, 20 N.W. 207; Smelt v. Knapp, 16 Neb. 53, 20 N.W. 20; Perkins v. Mead, 22 How. Prac. (N.Y.) 476; Thibault v. Connecitcut Valley Lumber Co., 80 Vt. 333, 67 A. 819; Barrows v. McGowan, 39 Vt. 238."
40 Cyc. 111, announces the following rule:
"However, according to the better rule, supported by the weight of authorities, the bringing of an action in an improper county or district is not a jurisdictional defect, where the court has general jursdiction of the subject-matter, and that the statutes fixing the venue in certain actions confer a mere personal privilege which may be waived. * * *
"Where a party fails to properly and reasonably lay claim to the personal privilege conferred by statute, he waives his right to object to the bringing of the action in the wrong county." Citing many cases.
The first intimation the trial court ever had, as shown by the record, that the defendant was contending that the special appearance and motion to quash presented the question of venue, was when counsel for defendant requested aforesaid directed verdict. This was a transitory action; the court had jurisdiction of the subject-matter, and counsel for defendant had the right extended by statute to have this case tried in the proper county, but it was incumbent upon counsel to timely present this question. It was not presented in the motion to quash for by the demurrer, nor in the answer filed by defendant. It could have been properly presented at any time prior to the time of filing the answer, or it could have been presented at the time the answer was filed.
Where defendant is served with a summons in a civil action pending in a county other than that of his residence, and denies the jurisdiction of the court over his person, he must present that question for determination at as early stage in the proceedings as is possible by proper motion, pleading, or answer, and if he proceeds to *Page 126 the trial of the case and does not in apt time present this single question until the conclusion of the evidence, we are of the opinion that such presentation of this jurisdictional question over his person is not timely, and that said defendant will be regarded as having waived this statutory right or privilege and to have submitted himself to the jurisdiction of the court. See Wells v. Patton, 50 Kan. 732, 33 P. 15; Bates Pleading, Practice and Forms (4th Ed.) sec. 554a; First Nat. Bank v. Geneseo Town Co., 51 Kan. 215, 32 P. 902; Iles v. Heidenreich, 271 Ill. 485, 111 N.E. 524.
Section 5369, C. O. S. 1921, provides that every bridge corporation must at all times keep a toll bridge in good, safe condition for travel both night and day, unless it be rendered impassable by reason of floods and high water. Section 5372, C. O. S. 1921, provides that each toll-gatherer is authorized to prevent all persons or vehicles from passing through his gates until such toll-gatherer has received the tolls authorized by law to be collected, and section 5373, C. O. S. 1921, provides if any person forcibly, willfully, or fraudulently passes over such toll bridge without having paid the legal toll, such person is liable for penalty. From these provisions of the statute it is apparent that it was necessary to have some one in charge of the bridge for the safety of the public and collection of the tolls, both day and night.
The inference or presumption is properly indulged in that George Martin, the father of Pete Martin, was in charge of the bridge for the defendant company. It was handled more or less by the Martin family, the wife, daughter, and brother of George Martin, and at times with the aid of Pete Martin, the son of George Martin. It is manifest that it was part of the duties of George Martin to keep the bridge in repair and to keep and prevent persons from passing over the same who did not pay the legal toll, and it was his further duty to collect this toll from those passing over the bridge. He was required to deposit the tolls in the bank at Konawa several miles distant, and of necessity some one other than himself was required to look after these matters when he was gone. Under such circumstances the jury could properly infer that he had implied authority to delegate these matters to his son for the purpose of conducting defendant's business. The necessity of this work required some one to be constantly in charge. This implied authority was a question of fact within the province of the jury and was to be determined from all the facts and circumstances presented by the evidence. Minn. Thres. Mach. Co. v. Humphrey, 27 Okla. 694,117 P. 203; Midland Savings Loan Co. v. Sutton, 30 Okla. 448,120 P. 1007; Iowa Dairy Sep. Co. v. Sanders, 40 Okla. 656,140 P. 406; Mass. B. I. Co. v. Vance, 74 Okla. 261, 180 P. 693.
The jury found, under proper instructions, by their verdict that Pete Martin was a servant, agent, or employee of said defendant.
2 C. J. 688, sec. 347, announces the following rule:
"Express authority to appoint subagents is not always necessary, as such authority is usually to be implied when the agency obviously and from its very nature is such as to make the employment of subagents necessary and proper. In such cases the employment of subagents is presumed to have been contemplated when, the power was given, and the agent has implied authority to appoint such subagents within the limits of the necessities of the case, and in some jurisdictions it is expressly provided by statute that an agent may delegate his authority when it is such that he cannot himself perform it. Accordingly, whenever the agent can show that the instructions of his principal could not have been properly executed without the employment of subagents, he will be warranted in delegating so much of his authority as the character of the agency demands."
In the case of Fritz v. Western Union Tel. Co., 25 Utah 263, 71 P. 209, on page 214, the Supreme Court of Utah said:
"Appellants also complain that evidence was erroneously admitted respecting the authority which was given by the general foreman, placing Buchanan in charge of the work at the time the accident occurred. The contention is that the general foreman possessed no authority, either express or implied, to employ any subagent. In this statement we cannot agree. We think from the facts in the case that an implied authority did exist. The defendant had employed Mosher to have general charge of the construction of the telegraph line between Park City and Salt Lake City, which required the services of some nine or ten men. Up to about three days before the accident these men were directed by an asserted foreman, who had the key to a box car containing their tools. After his discharge, Buchanan took his place and had charge of the tools. The evidence shows that the necessity of the work required a man constantly in charge, and that such a charge was, vested in both Mosher and Buchanan. Under such circumstances, we think the authority of Buchanan may be implied. It is not necessary in every instance to show that a subagent has been expressly appointed by the master. Says Mr. Mechem, in his work on Agency: 'It is obvious, too, that there are *Page 127 many cases where, from the very nature of the duty, or the circumstances under which it is to be performed, the employment of subagents is imperatively necessary, and that the principal's interest will suffer if they are not so employed. In such cases the power to employ the necessary subagents will be implied. The authority of an agent is always construed to include the necessary and usual means to execute it properly.' In Shear R. Neg. sec. 156, it is said: 'The master is, of course, liable for the negligence of one whom his servant employs by his authority to aid such servant in the master's business. Such authority need not be expressed, but may be implied from the nature of the business or the course of trade, thus such an authority would almost necessarily be implied in favor of a servant intrusted with the whole care of a farm, or the construction of a building, or distribution of a large quantity of goods, or any other task which could not be performed within a reasonable time by one man.' If an exigency exists or arises making it necessary for the proper carrying out of the master's business that a sub-agent should be employed, then the authority so to do will be implied. Mickelson v. Railway Co., 23 Utah 42, 64 P. 463; Underwood v. Birdsell (Mont.) 9 P. 922. We think the court committed no error in admitting the testimony complained of, nor in refusing to give the instruction requested by appellants relating to this same subject-matter."
Counsel for defendant contends that their demurrer to the petition of plaintiff should have been sustained on the ground that the petition did not state facts sufficient to consitute a cause of action against the defendant on the theory that the petition did not specifically allege that the servant, agent, or employee of the defendant, who fired the shot which struck the plaintiff, and which was alleged to have been shot by said servant, agent, or employee with the willful, wanton, malicious, and negligent intent to injure said plaintiff in utter disregard to the rights of plaintiff, was acting within the scope of his authority, and that the failure to allege that said agent was so acting was fatal to the petition on demurrer.
In the absence of a motion to make more definite and certain, a petition should be liberally construed in favor of the pleader and against the demurrant. See Guilliott v. Kennedy,101 Okla. 179, 224 P. 540.
Under the liberal rule which prevails in this state regarding amendments for the purpose of rendering substantial justice, a cause ought not to be reversed because there has been a defect or an omission in the allegations of the petition, when such defects or omissions have been fully supplied by the proof, and which results in no substantial prejudice to any of the parties to the action. Guilliott v. Kennedy, supra; Burgner-Bowman Lmbr. Co. v. McCord-Kistler Merc. Co. (Kan.) 216 P. 815; Fire Ass'n of Philadelphia v. Correll, 158 Okla. 292,10 P.2d 686.
39 C. J. page 1353, announces the following rule:
"Where a willful and intentional injury by the servant is charged, a failure to allege that he was acting within the scope of his employment renders the complaint insufficient on demurrer; but a direct averment in terms to this effect is unnecessary if it appears by necessary implication from the facts stated * * *."
The Supreme Court of Wisconsin, in the case of Savich v. Hines, Director General of Railroads, 182, N.W. 924, in the second paragraph of the syllabus said:
"Where it can be assumed that the trial court would have permitted an amendment of the complaint if it had been requested, appellate court will consider case as though complaint were amended."
The Supreme Court of Washington, in the case of Holloway v. Geck, 158 P. 980, said:
"The first contention of the defenants is that the complaint does not state facts sufficient to constitute a cause of action; but we think that all the objections urged by them have been met by the proofs offered on the trial, and we will deem the complaint amended to conform to such proofs."
The Supreme Court of Kansas, in the case of Burgner-Bowman Lumber Co. v. McCord-Kistler Mercantile Co., said in the sixth paragraph of the syllabus, on motion for rehearing, 216 P. 815, as follows:
"It is competent for the court to treat pleadings as amended upon an issue which has been fully tried out, where it cannot work substantial prejudice to any of the parties to the action, and it is held that the answer of the defendant herein may be treated as amended to ask for a recovery of damages."
Also, in this connection, see Baltimore O. S.W. R. Co. v. Beach (Ind.) 163 N.E. 618.
The presumption exists that, when the servant is in performance of his master's business, he is acting within the scope of his employment. See Doherty v. Lord, 28 N.Y. S. 720.
The facts stated in the petition imply, at the time of firing the shot, Pete Martin was an agent, servant, or employee of the *Page 128 defendant, acting within the scope of his employment, in an endeavor to collect the toll or fees in furtherance of defendant's business.
On the question of the liability of the master for the tortious acts of his servant or agent at issue in the instant case, the Supreme Court of Kansas, in the case of Mansfield v. Wm. J. Burns Detective Agency, 171 P. 625, speaking through Mr. Chief Justice Johnston, said:
"That general rule is that a master or principal is liable for the tortious acts of his servant or agent where such acts are incidental to and done in furtherance of the business of the master or principal and this is true, although the servant or agent acted in excess of the authority conferred upon him, or willfully or maliciously committed the wrongs."
The Supreme Court of Kansas, in the case of Bjorkman v. Atchison, T. S. F. Ry. Co., 231 R. 1029, in considering the question of the willful, wanton, reckless, or malicious negligence of the servant of said railway company, quoted with approval from the case of Dixon v. Northern Pac. R. Co.,37 Wn. 310, 79 P. 943, as follows:
"It is well settled, generally, that a railroad company is responsible in damages to a trespasser for torts committed upon him by a servant, who, in the commission of the tort, is acting in the line of his employment, and within the scope of his authority, not within the scope of his authority as applied to the commission of the tort, for no authority for such commission could be conferred, but within the scope of his authority to rightfully do the particular thing which he did do in a wrongful manner."
In the case of childers v. Southern Pac. Co., 20 N.M. 366, 149 P. 307, the Supreme Court of New Mexico, in discussing the liability of the master for the wanton and malicious acts of the servant, said:
"It has been held, in a great variety of cases, that the master is liable for the wanton or malicious acts of his servant if they were committed while the servant was acting in the execution of his authority and within the course of his employment. Mechem on Agency (2d Ed.) section 1960; Elliott on Railroads, section 1265. Some of the earlier cases, it is true, announced the contrary rule; but this doctrine no longer prevails. The difficult question is to determine what acts may be deemed within the course of the servant's employment, within the meaning of the rule. Mechem on Agency, section 1960, states the rule as follows: 'But in general terms it may be said that an act within the "course of employment" if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill-advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive oil the part of the servant to do the act upon his own account'."
See, also, 39 C. J. 1292; Kansas City, Ft. S. G. R. Co. v. Kelly (Kan.) 14 P. 172; Johnson v. Monson (Cal.) 190 P. 635.
The instant case was tried on the theory that Pete Martin at the time he fired the shot was the agent, servant, or employee of the defendant company, and fired said shot in the performance of his duty and within the scope of his authority, to prevent plaintiff from escaping from paying his legal toll which said Martin was at the time of firing said shot endeavoring to collect from plaintiff. The petition is not to be commended as a model, but facts are stated in the petition to justify the inference that the servant who fired the shot was acting in the course and scope of his employment, with said defendant, at the time that he fired the shot in question, in furtherance of his master's business. These issues were tried. Evidence was fully offered on all of these questions. No substantial prejudice resulted to defendant under such circumstances, and this court will treat the pleadings as amended to conform to the proof.
We have examined the instructions which were given by the court and the refused requested instructions. Counsel for the defendant did not object to a single instruction which was given by the court. The defendant complained that the court erred in refusing to give certain instructions offered by the defendant to which it was entitled, and which were not covered by the instructions that the court gave. We think the court fairly and properly instructed the jury, and that there was no error in refusing the requested instructions. We find no prejudicial error in this case.
Judgment affirmed.
RILEY, CULLISON, SWINDALL, and ANDREWS, JJ., concur. LESTER, C. J., and CLARK, V. C. J., dissent. KORNEGAY and HEFNER, JJ., dissent.