Anthony v. Covington

• Decision Date: 06 February 1940
• Docket Number: Case Number: 29213
• Parties: ANTHONY v. COVINGTON et al.
• Court: Oklahoma Supreme Court

1940 OK 59

100 P.2d 461

187 Okla. 27

ANTHONY v. COVINGTON et al.

Case Number: 29213

Supreme Court of Oklahoma

Decided: February 6, 1940

Syllabus

¶0 1. AUTOMOBILES--Proof of incompetent driver's negligence necessary to hold car owner liable for injuries.

Under the rule imposing liability upon an automobile owner for injuries to third persons by driver known to be incompetent, proof of driver's negligence is necessary in order to hold owner liable.

2. NEGLIGENCE--JUDGMENT-- Liability of one defendant predicated solely on culpability of codefendant--Judgment against former and in favor of latter cannot stand.

In negligence actions, where the liability of one defendant is predicated solely on the culpability of a codefendant, and hence is dependent, a judgment in favor of the latter and against the former is erroneous and cannot stand.

Appeal from Superior Court, Okmulgee County; Harland A. Carter, Judge.

Automobile personal injury action by Pauline Covington, by E. L. Covington as next friend, against Verona Bessent and S. W. Anthony. Judgment for plaintiff as against defendant Anthony, but in favor of defendant Bessent. Defendant Anthony appeals. Reversed and remanded, with directions.

John R. Miller, L. O. Lytle, Roy T. Wildman, and Rex Anspaugh, all of Sapulpa, for plaintiff in error.

Tom Payne, of Okmulgee, for defendant in error.

DANNER, J.

¶1 The owner of an automobile permitted its use by one whom he knew to be a careless and reckless driver. The driver, who it is conceded was not the servant of the owner, drove the car on the streets of Okmulgee and collided with plaintiff, who was on foot.

¶2 Plaintiff sued the owner and the driver jointly. The jury returned a verdict against the defendant owner, and made no report of any finding at all, one way or the other, as affecting the defendant driver. The owner excepted to the verdict, and also moved for judgment notwithstanding the verdict, which motion was overruled. The trial judge rendered judgment in favor of the plaintiff against the owner, and further finding that because of the jury's failure to find either for or against the driver, the jury intended for the plaintiff to take nothing against the driver. Accordingly, the court entered judgment in favor of the driver.

¶3 The owner appeals, making the plaintiff and the driver defendants in error. The plaintiff has not filed any crossappeal, against her failure to obtain judgment against the driver.

¶4 The judgment was predicated upon the rule used in Coker v. Moose, 180 Okla. 234, 68 P.2d 504, and Anderson v. Eaton, 180 Okla. 243, 68 P.2d 858, to the effect that the owner of an automobile who loans it to another, knowing that the borrower is so incompetent or reckless in his driving as to render an automobile in his hands a dangerous instrumentality, is liable for injuries caused third persons by the borrower's negligence. The plaintiff contends that the judgment should be affirmed by reason of said rule, while the defendant criticizes the rule and contends that the facts of the case do not warrant its application. It is unnecessary for us to concern ourselves with that argument. It will be observed that the reversal of this judgment is predicated neither upon a reaffirmance nor a rejection of the rule. If, allowing plaintiff every reasonable benefit of the rule, and hypothetically applying said rule to the case for the purpose of reasoning, the judgment cannot stand, then it is unnecessary either to approve or criticize said rule.

¶5 The proof of a case, even under the rule, entails the proof of four requisites, according to the almost unanimous opinion of the courts and text-writers, and the fourth of said requirements is proof that plaintiff was injured by reason of the negligent operation of the automobile by the borrower. Jones v. Harris, 122 Wash. 69, 2 10 P. 22; 2 Blashfield, Cyc. of Auto. Law, 1332; 4 Berry, Law of Auto's (7th Ed.) 710; 7 Huddy, Cyc. of Auto. Law (9th Ed.) § 118; Restatement of Law of Torts, p. 1060; Annotations, 36 A. L. R. 1148, 68 A. L. R. 1013, 100 A. L. R. 920; 5 Am. Jur. 696.

¶6 It must almost be self-evident that the said fourth requirement, set forth above, is a logical necessity. A complete perusal of the text-writers and reported decisions has failed to reveal any statement of the law or any decision fastening liability upon the owner in the absence of negligence of the driver contributing to the accident. Even the authorities quoted in plaintiff's brief recognize its necessity.

¶7 Plaintiff argues that negligence of the driver is unnecessary, that the instant judgment is not dependent upon the master and servant relationship, but that the negligence of the owner in intrusting the automobile to the driver is the negligence which is relied upon. Nevertheless, if an accident occurs in which the driver is not negligent, there is no causal connection between the owner's precedent negligence and the injury itself. As stated in the Jones Case, supra, and in virtually all of the pronouncements of the rule, it is the combined negligence of the owner and operator which fastens liability upon the owner. Otherwise the plaintiff's recovery would rest on no stronger basis than the "but for" doctrine. In spite of the absence of the master and servant relationship, the liability under the present rule, just as under the master and servant rule, is dependent. Dependent because negligence of the driver must exist, in order to provide a causal connection between the injury and the bailment. In Gerritsen v. City of Seattle, 164 Wash. 459, 2 P.2d 1092, it was held that where a school district had closed a street with the city's permission, and maintained a barrier thereon, a verdict exonerating the school district necessarily exonerated the city. There the plaintiff argued that as the case did not rest upon the doctrine of respondeat superior, the city was liable anyway. The court did not agree with that contention, and pointed out that if the act of the school district in placing the barrier there had judicially been determined not to be negligence, in such manner as to be binding between the plaintiff and the city, then the city could not be held, there being no predicate upon which to pin the liability. The court quoted from the case of Sawyer v. City of Norfolk, 136 Va. 66, 116 S. E. 245, an action against a city and a restaurant, for injuries occurring to plaintiff by a door of the restaurant swinging outward over the sidewalk and becoming an obstruction to pedestrians. There was no master and servant relationship, of course. The jury exonerated the restaurant and at the same time awarded recovery against the city. The judgment was reversed, the court saying, in part:

"It is closely related to the question of res adjudicata, and is governed by the same principle. Where there has been litigation which has in fact determined the point in controversy, and there has been a final judgment, that judgment is conclusive. Where the subject matter is identical, and the evidence is of necessity the same, the question cannot be reopened. * * * It is manifest here that, as the defendants, the Puritan Restaurant, have been acquitted of any actionable negligence out of which the injury of the plaintiff arose, the city of Norfolk cannot be held liable therefor, because its liability is derivative, and under the facts of this case depends upon the alleged specific negligence of the Puritan Restaurant. This issue having been judicially detrmined adversely to the plaintiff, the city is not liable for his injuries, which he alleges were thereby caused."

¶8 Strictly speaking, the liability is not derivative,--it is dependent.

¶9 A number of decisions involving similar or analogous situations, not involving the servant and master relationship, yet arriving at the result that dependent liability cannot be imposed in the face of exoneration of the defendant whose negligent acts are claimed to have been the immediate cause of plaintiff's injury, are cited in the Gerritsen Case (Wash.) 2 P.2d 1092 at 1094. In the master and servant cases the servant's negligence is imputed directly to the master; in the present type of case, involving combined negligence, if it be decided that the driver was in fact not negligent, but, on the contrary, was free from blame, there is a loss of connection between the injury and the owner's original negligence, if any, in intrusting the automobile to the ordinarily reckless...