Agee v. Gant

• Decision Date: 15 February 1966
• Docket Number: No. 40910,40910
• Citation: 1966 OK 31,412 P.2d 155
• Parties: Lennie V. AGEE, Plaintiff in Error, v. Mrs. Clemie L. GANT, surviving wife of Louis C. Gant, deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 155

412 P.2d 155

1966 OK 31

Lennie V. AGEE, Plaintiff in Error, v. Mrs. Clemie L. GANT, surviving wife of Louis C. Gant, deceased, Defendant in Error.

No. 40910.

Supreme Court of Oklahoma.

Feb. 15, 1966.

Syllabus by the Court

1. The question of negligence, where there is competent evidence introduced from which reasonable men might draw different conclusions, is one for the jury, and under like circumstances the question of proximate cause is one for the jury.

2. A motorist colliding with an automobile parked on a highway is guilty of primary negligence proximately causing the collision if he saw or should have seen the parked automobile in time to have avoided the accident.

3. The question of negligence or no negligence is one of law for the court, where but one inference can reasonably be drawn from the evidence.

4. The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence but also its nature and extent, rests ordinarily upon the party who alleges it.

5. Where the evidence is conflicting or where reasonable men may differ in conclusions therefrom, the issue of master and servant or of principal and agent is one of fact for determination by the jury.

6. A large discretion is vested in the trial court in determining the competency and qualifications of jurors and its action should never be disturbed by an appellate court, unless an abuse of such discretion is clearly apparent.

7. To entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice.

Appeal from the District Court of Okmulgee County; J. I. Pitchford, judge.

Appeal by Lennie V. Agee from a judgment rendered on jury verdict in favor of Clemie L. Gant, surviving wife of Louis C. Gant, deceased, for damages for wrongful death of deceased by reason of collision of a car driven by defendant with an automobile in which deceased was a passenger. Affirmed.

Rhodes, Crowe, Hieronymus & Holloway, Philip N. Landa, Tulsa, for plaintiff in error.

D. F. Rainey, Okmulgee, Harland A. Carter, Okmulgee, Gerald D. Swanson, John Adkison, Tulsa, for defendant in error.

DAVISON, Justice.

This is an appeal by Lennie V. Agee (defendant below) from a judgment rendered on jury verdict in favor of Clemie L. Gant, surviving wife of Louis C. Gant, deceased, (plaintiff below) for damages for wrongful death of deceased by reason of collision of a car driven by defendant with an automobile in which deceased was a passenger.

The accident took place at about ten o'clock at night on December 16, 1960, about 4 miles north of Okmulgee, Oklahoma, on U.S. Highway 75, with the weather fair and cold, and the highway pavement dry. The defendant was driving north and the deceased was sitting in the car of one Bond, which was stopped in defendant's traffic lane.

Plaintiff's petition alleged the defendant's negligence was, driving at a fast and careless speed of about 60 miles per hour in violation of the statutes, and at a speed that would prevent him from stopping within the assured clear distance ahead, and with not paying proper attention to his driving and other vehicles on the highway, and that with ordinary care defendant would have been able to see the vehicle in time to avoid a collision. Defendant answered by general denial and denial of negligence, and alleged Bond was the agent and servant of deceased and that they were engaged in a joint mission, and the negligence of Bond was imputable to deceased, that Bond and deceased were both intoxicated, and that Bond parked his car on the wrong side of the highway heading south (against traffic) without lights and without warning oncoming traffic, whereby Bond and deceased contributed to the proximate cause of deceased's death. Plaintiff's verified reply made up the issues.

Defendant contends the trial court erred in overruling his demurrer to plaintiff's evidence and in denying his motion for directed verdict.

The distance from Tulsa, Oklahoma, to Okmulgee was about 40 miles, depending on the route traveled. About one o'clock on the afternoon of December 16, 1960, the deceased and one Foster left Tulsa and went to Kiefer, Oklahoma, in deceased's car. Before leaving Tulsa and on the way they consumed a considerable amount of whiskey and some beer. While going south from Kiefer toward Okmulgee the deceased's car ran out of gasoline and Foster started walking south to get some. Foster was soon overtaken by Bond in his car, and upon learning of the situation, Bond took Foster back to the deceased's stalled car and the three of them then drove south in the Bond car to Okmulgee, where deceased bought a can of gasoline. While driving to Okmulgee they drank the balance of a half pint of whiskey that belonged to Bond. Before leaving Okmulgee the deceased bought a pint of whiskey and the opened bottle was passed from one to the other as the car proceeded north out of Okmulgee on U.S. Highway 75, with Bond driving. About 4 miles north of Okmulgee the car lights faded and the car stalled or stopped. Foster testified a car had just passed from the north, and that he got out to push the car, but before he could do so he saw the lights of a car (defendant's car coming from the south) and jumped back, and the collision took place. Bond and deceased were still in the car and deceased was thrown out and killed. The testimony of plaintiff's witnesses established the above events. Foster also testified defendant's car was going 'fast' at 60 or 70 miles per hour, but could possibly have been going more or less than that.

Defendant testified that on December 16, 1960, he had business in the Okmulgee area and ate at a dinner club that evening about 6:00 or 6:30, where he had two whiskey drinks before dinner, and then visited in a friend's home from about 8:00 p.m. to 10:00 p.m., and no drinks other than above mentioned; that he then left Okmulgee and was driving north on U.S. Highway 75 with the car lights on dim at about 47 to 53 miles per hour and that the lights of a passing car blinded him and he then saw the Bond car directly in front of him, parked in his lane of traffic with no lights, and headed toward him in a slightly southwesterly direction; that he immediately applied his brakes and the front center of his car struck the left front of the Bond car, causing the Bond car to swing around and head back north.

The State Highway Patrolman arrived on the scene shortly after the collision and testified his examination showed the accident occurred in the east lane of traffic and that the speed of defendant's car was about 50 miles per hour and left 26 feet of skid marks in the center of the east lane of traffic; that the defendant's car was going north and struck the left front fender of Bond's car, causing it to whirl around headed back north; and that defendant appeared normal, and Bond appeared to be drunk.

Both Bond and Foster testified the Bond car was headed in a northerly direction, but in view of all of the testimony and especially the photos of the two cars showing practically a head-on impact, a reasonable person could only conclude that at the time of impact the Bond car was headed in a southerly direction.

The statute here involved and necessarily relied upon by plaintiff is that part of 47 O.S.Supp.1955, Sec. 121.3(a), now 47 O.S.1961, Sec. 11--801(a), which reads as follows:

'(a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.'

Defendant contends that a consideration of the evidence reveals an absence of any evidence which proves or tends to prove any acts of negligence charged to defendant in plaintiff's petition. It is defendant's position that this narrows plaintiff's proof of negligence to the circumstance that defendant's car was driven into the other vehicle, and cites the rule that the mere fact an automobile is driven into or against a person or other object in its path does not raise a presumption that the speed was excessive within the meaning of the above quoted statute. Taylor v. Ray, 177 Okl. 18, 56 P.2d 376; National Tank Co. v. Scott, 191 Okl. 613, 130 P.2d 316; and Green v. Thompson, Okl., 344 P.2d 272. This is a correct rule of law and the absence of such presumption permits the jury to consider all of the facts and circumstances revealed by the evidence and determine whether there was primary or contributory negligence within the issues raised by the pleadings. This was the holding in the above cited cases.

In Kraft Foods Co. v. Chadwell, 207 Okl. 379, 249 P.2d 1002, a truck ran into a car which some of the evidence showed was parked without lights in the regular lane of traffic on the highway. The truck driver testified he was traveling well within the speed limit and that he was temporarily blinded by the lights of a passing car and that after the car passed he was so close to the parked car that he could not avoid the collision. Therein we stated that:

'The question of negligence, where there is competent evidence introduced from which reasonable men might draw different conclusions, is one for the jury, and under like circumstances the question of proximate cause is one for the jury.'

And in Whitney v. Douglas, Okl., 307 P.2d 154, we said that a person was required to operate his car in conformity with the above quoted statute, and that:

'It is the duty of a driver of an automobile traveling by night to have such a headlight as will enable him to see in advance the face of the highway...