All Am. Bus Lines v. Saxon

Decision Date25 June 1946
Docket Number32029.
Citation172 P.2d 424,197 Okla. 395,1946 OK 199
PartiesALL AMERICAN BUS LINES et al. v. SAXON.
CourtOklahoma Supreme Court

Rehearing Denied Sept. 10, 1946.

Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.

Personal injury action by Harry Saxon against All American Bus Lines a corporation, and others. From an adverse judgment, the defendants appeal.

Affirmed.

In personal injury action, instruction which failed to mention amount which plaintiff had received in settlement with an alleged joint tort-feasor was not erroneous, where another instruction covering measure of damages instructed jury to consider that plaintiff had already received specified sum under the settlement.

Syllabus by the Court.

1. Under the provisions of 47 O.S.1941 § 169, a motor carrier and his liability insurance bondsmen are jointly liable to make compensation for injuries to persons, resulting from the operation of such motor carrier, the liability being created by statute, and such an injury constitutes one cause of action against the joint defendants, and not a separate cause of action against each of them.

2. Acknowledgment by plaintiff of satisfaction against one, or less than all, of two or more defendants sued as joint tort-feasors, will not release the others unless the instrument claimed to be a release shows that it was intended to have such effect, nor where such instrument expressly reserves the right to continue such action against the other defendants.

3. Where, although concert is lacking, the separate and individual acts of several persons combine to produce directly a single injury, each is responsible for the entire result even though the act of one person alone may not be the cause of the injury.

4. In an action for damages against two or more defendants, based upon alleged separate and individual concurring acts of negligence, the question of negligence of each defendant and whether such negligence, if proved, was a contributing concurrent cause of the injury are questions of fact for the jury where the evidence (with respect thereto) is in conflict.

5. The amount of an award under the Workmen's Compensation Act is not a standard by which to measure the amount of damages in a personal injury case.

6. Instructions are to be considered in their entirety; no particular paragraph is to be singled out neither a part nor paragraph will be given consideration to the exclusion of other parts or paragraphs; and where the jury is properly instructed in one paragraph of an instruction, it is unnecessary to repeat in other paragraphs of the instructions.

George F. Short, Welcome D. Pierson, and George E. Fisher, all of Oklahoma City, for plaintiffs in error.

A. L Morrison, of El Reno, and John E. Luttrell and John M. Luttrell, both of Norman, for defendant in error.

RILEY Justice.

This is an appeal from a judgment in favor of Harry Saxon against plaintiffs in error, All American Bus Lines, American Fidelity & Casualty Company, and Dillard Clyde Jackson, in an action to recover damages for personal injuries.

The action grew out of a dual collision of motor vehicles operated on a state highway. At approximately 12:15 or 12:30 a. m. May 30, 1943, Harry Saxon, the plaintiff below, was driving a gasoline transport truck-trailer motor vehicle in a northerly direction on U.S. Highway 66, going north from the city of Bristow, Oklahoma. Reva Mae Parkinson, accompanied by her husband, Benjamin LeRoy Parkinson, was driving an Oldsmobile coupe along the same highway in the same direction. She came up behind the truck and at a point about one and one-half miles north of Bristow, attempted to pass the truck on the left side. At approximately the same time a motor passenger bus belonging to defendant, All American Bus Lines, being driven by defendant Jackson, approached from the north. When the Parkinson automobile was 15 or 20 feet past plaintiff's truck and before it had returned to the right side of the paved part of the highway, a collision occurred between the bus and the Parkinson automobile. The impact of the bus forced the automobile off the highway. The bus ran across the center of the highway and collided with plaintiff's truck with force that threw plaintiff to the ground, broke an auxiliary gasoline tank on the truck and ignited the gasoline. Plaintiff was burned about his face, neck, and arms, and injured.

Defendant Bus Lines, a motor carrier of passengers, is required to have a certificate of convenience and necessity and provide liability insurance or bond. 47 O.S.1941 § 169.

Defendant American Fidelity & Casualty Company was the insurance carrier. Its liability was limited to $5,000 to each person injured as a result of any accident due to the negligence of the carrier.

Plaintiff sued All American Bus Lines, American Fidelity & Casualty Company, Reva Mae Parkinson, and Dillard Clyde Jackson. Plaintiff sought $50,000 damages and alleged as to defendant Reva Mae Parkinson that she 'was negligent and careless in that she operated the said vehicle on the west side of said highway and passed the plaintiff's truck at a time when it was proceeding upgrade and approximately 200 to 300 feet south of the crest of a hill and at a time when the vision of the operator of said Oldsmobile was so obscured by reason of said hill that traffic approaching from the north on the opposite side of the hill could not be seen.'

As to defendants Bus Lines and Jackson, plaintiff alleged negligence in that the bus was being operated while equipped with defective brakes and defective steering gear (the exact nature of which defects being unknown to plaintiff but was known to defendants); that the bus was operated at a high and dangerous rate of speed (to-wit, approximately 50 miles per hour); and that the operator of the bus was careless in that the bus was caused to cut across the highway against the Parkinson automobile and after striking it, the bus struck the cab of plaintiff's truck violently so as to throw plaintiff from the truck cab and to cause the gasoline to escape from the tank and become ignited; and that plaintiff had driven his truck to the extreme right-hand side, or east portion of the highway, partially upon the east shoulder; that the Parkinson automobile was approximately 20 feet in front of his truck when the collision occurred but that there was sufficient space on the west side of the automobile to enable the bus to safely pass had it been properly controlled and operated; that the joint and concurrent negligence of defendants caused the plaintiff's injuries; that plaintiff suffered 'an oblique fracture of his left jaw * * * that the muscles, tendons and ligaments of his back and neck were * * * torn and damaged; that he suffered multiple contusions and abrasions * * * (and) an injury to his vertebrae * * * fracture of his * * * rib * * * second and third degree burns of his face, scalp, nose, ears, hands and arms; * * * a brain concussion * * * an injury to * * * his right arm * * * in the region of his elbow * * *. (and as) result of his injuries he developed systemic malaria and * * * an enlarged liver and spleen.'

Upon order of the court, plaintiff amended his petition by attaching a copy of the insurance policy and alleged: '* * * after this action was filed, (plaintiff) entered into a covenant not to sue * * * Reva Mae Parkinson, and her husband, (and agreed) to dismiss the * * * action insofar as Reva Mae Parkinson might be concerned, for a * * * consideration of $4500.00. * * *' A copy of the agreement was attached to the amended petition.

Defendants Bus Lines, Jackson, and American Fidelity & Casualty Company demurred. Defendant Reva Mae Parkinson defaulted in pleading.

The demurrers were overruled. Defendants Bus Lines and Jackson answered denying plaintiff's capacity to sue; they alleged a misjoinder of parties defendant and a misjoinder of causes of action. The answer then denied generally and specifically and alleged the bus was operated in a careful and prudent manner. These defendants plead plaintiff's injuries and damages were caused by the carelessness and negligence on the part of a third party, namely, defendant Reva Mae Parkinson, the contributory negligence of plaintiff and the unavoidability of the accident.

The answer pleaded the agreement and release of defendant Reva Mae Parkinson as a release of the answering defendants or a credit upon such judgment as might be rendered.

Defendant American Fidelity & Casualty Company answered similarly and alleged that its liability, if any, arose out of its contract of insurance, while the liability, if any, of the remaining defendants arose by reason of their negligence and therefore no joint liability of all the defendants exists; that the cause of action, if any, against the insurer was prematurely brought; that no cause of action could be prosecuted against the insurer until plaintiff has recovered a judgment against the assured.

The issues were joined. Defendants Bus Lines and Jackson and American Fidelity & Casualty Company sought separate trials. The applications were denied.

The verdict was favorable to plaintiff in the amount of $10,500. Judgment was rendered on the verdict against defendants All American Bus Lines and Dillard Clyde Jackson in the sum of $10,500 and against the defendant American Fidelity & Casualty Company in the sum of $5,000. Defendants appeal.

Six propositions are presented. The first is 'The trial court erred in permitting the joinder of the insurance carrier with the motor carrier * * *'.

This court, in Temple v. Dugger, 164 Okl. 84, 21 P.2d 482; Jacobsen v. Howard, 164 Okl. 88, 23 P.2d 185; Enders v. Longmire, 179 Okl. 633, 67 P.2d 12; Safeway Cab Co. v. McConnell, 181 Okl. 612, ...

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