618 P.2d 921 (Okla. 1980)
In this personal injury action, plaintiff Marilyn S. White alleged that she was a passenger in a truck driven by defendant Robert W. White.1 They were traveling south on Interstate 35 near the city of Louisville, Texas, when the defendant lost control of his truck, overturning it and causing injury to her body.2
The petition alleged that the plaintiff's injuries were caused by negligent acts of the defendant.3 He failed to keep a proper lookout for vehicles properly on the highway.4 He followed the vehicle in front of him too closely in violation of specific Texas statutes which were pleaded and attached.5 Robert White drove his vehicle into a space between the divided roadway and failed to keep his vehicle only upon the righthand roadway in violation of another specific Texas statute which was pleaded.6 He drove his vehicle at a speed that was greater than reasonable and prudent under the circumstances in violation of another specific Texas statute which was also pleaded and attached.7
The plaintiff pleaded that as a result of said negligent actions she suffered broken bones and other injuries to the body resulting in permanent disability, medical expenses, and lost income with her damages totaling some $200,000.00.8
The petition further alleged that at the time of the accident the defendants Robert W. White and Edward White were engaged in a joint venture or partnership operating a long-haul truck tractor-trailer.9 The plaintiff was employed by the defendants to help operate the truck.10 At the time of the accident she was within the scope of her employment.11 The defendants failed to carry Workmen’s Compensation Insurance, and that she has elected to proceed in the District Court.12
Attached to the petition and made a part thereof was the Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance.13 The Corporation Commission of Oklahoma certified that Employers Casualty Corporation had issued to Edward White of Fort Cobb, Oklahoma an insurance policy covering the obligations imposed upon the insured by the Oklahoma Motor Vehicle provisions.14 Employers Casualty Corporation is not a party to this appeal because the cause against it was dismissed without prejudice by the plaintiff.15
In response to the petition the defendants Robert W. White and Edward White filed special demurrers.16 They demurred to the petition on the grounds that the plaintiff has no legal capacity to sue and that the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants.17 In arguing that the demurrers should be sustained both Robert and Edward White argued that the plaintiff Marilyn S. White lacks the capacity to sue because she is the wife of Robert W. White and under the laws of Texas one spouse may not bring a personal injury action against the other.18 This fact does not appear on the face of the petition.19 The defendants also argued that in fact the plaintiff was not their employee but was a co-employer.20 They relied upon facts which do not appear upon the face of the petition.21
The trial court sustained the demurrers to the petition and dismissed the case with prejudice.22 The plaintiff appealed, and the matter came before the Supreme Court of Oklahoma for review.23
Whether the trial court committed reversible error in sustaining a demurrer to the petition in a personal injury action, then dismissing the case with prejudice?24
If the facts pleaded in the petition state a cause of action, the demurrer must be overruled. A demurrer must be decided solely on the face of the petition; extrinsic facts may not be considered.25
Yes. The petition alleged that Marilyn S. White was injured when Robert W. White lost control of the truck on Interstate 35 in Texas due to negligent acts violating pleaded Texas statutes regarding proper lookout, following too closely, lane usage, and speed, resulting in damages of $200,000.00. It further alleged that the defendants were engaged in a joint venture, that the plaintiff was their employee within the scope of employment at the time of the accident, and that they failed to carry workers' compensation insurance.
Because these facts stated a cause of action on the face of the petition, the trial court erred when it sustained the demurrers that relied on extrinsic facts.26
The trial court committed reversible error in sustaining the demurrers and dismissing the case with prejudice.27
Whether facts not appearing on the face of the petition may be considered by the trial court in ruling on demurrers?28
Facts not appearing on the face of the petition may not be considered by the trial court in ruling on demurrers; such facts may be raised only as affirmative defenses in an answer.29
Facts not appearing on the face of the petition may not be considered by the trial court in ruling on demurrers.32
Whether the law of Texas or the law of Oklahoma governs the plaintiff's capacity to sue her husband in tort?33
Choice-of-law questions in tort are resolved by determining which state has the most significant relationship to the occurrence and the parties under the factors of place of injury, place of conduct causing injury, domicile and place of business of the parties, and place of the parties' relationship.34
No. The former mechanical rule of lex loci delicti that automatically applied the law of the place of the wrong has been abandoned.35 The trial court on remand must instead apply the most significant relationship test adopted in Brickner v. Gooden to decide whether Texas or Oklahoma law governs the capacity issue.36
The law of Texas or the law of Oklahoma governs the plaintiff's capacity to sue her husband in tort according to which state has the most significant relationship to the occurrence and the parties.37