Barger v. Mizel

• Decision Date: 14 February 1967
• Docket Number: No. 41459,41459
• Citation: Barger v. Mizel, 424 P.2d 41, 1967 OK 38 (Okla. 1967)
• Parties: Suzanne BARGER (New Gilstrap), Plaintiff in Error, v. Steve M. MIZEL, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 41

424 P.2d 41

1967 OK 38

Suzanne BARGER (New Gilstrap), Plaintiff in Error, v. Steve M. MIZEL, Defendant in Error.

No. 41459.

Supreme Court of Oklahoma.

Feb. 14, 1967.

Syllabus by the Court

1. In a negligence action where plaintiff seeks to establish liability of owner for entrusting automobile to alleged careless, negligent, inexperienced, reckless driver who was operating vehicle at time of accident, and evidence showed no acts of carelessness or recklessness or inexperience but only that driver had not driven particular type of sports car previously, the trial court properly sustained defendant's demurrer to the evidence.

2. Essential facts may be established by circumstantial evidence through permissible inferences drawn from proven facts, but not through inference upon inference nor presumption upon presumption.

3. Where the ultimate fact in issue involves negligence arising from owner's entrusting particular vehicle to alleged incompetent and inexperienced driver, the trial court did not err in excluding proffered opinion testimony of expert witness that an inexperienced driver could not operate particular vehicle without prior experience, instructions and admonitions concerning automobile's operation.

Appeal from District Court of Creek County; Kenneth Hughes, Judge.

Negligence action for damages against both driver and owner of vehicle. The trial court sustained a demurrer to the evidence as to the owner and plaintiff appeals. Affirmed.

Jack B. Sellers, Supulpa, for plaintiff in error.

Loeffler & Allen, Bristow, Lionel Cohen, Tulsa, Joe A. Moore, Professor of Law, Memphis State University, Memphis, Tenn., of counsel on the brief, for defendant in error.

BERRY, Justice.

Plaintiff in error, as plaintiff in the trial court, brought an action to recover damages for personal injuries received in a one car automobile accident. The amended petition charged the accident resulted from negligence of defendant Mizel, owner of the vehicle, of the driver Lang, and the General Motors Corporation, manufacturer of the vehicle involved. At the trial plaintiff dismissed the action as to the corporate defendant. The trial court sustained a demurrer to the evidence as to defendant Mizel, after which the jury returned a verdict against the operator, Lang. The appeal was dismissed as to Lang, and the single issue presented by this appeal involves the propriety of the trial court's order and judgment in respect to defendant Mizel.

Relevant circumstances disclose that on October 31, 1963, the parties involved all occupied apartments in Friendship House, in Tulsa, Oklahoma. Defendant, whom plaintiff had known about sixty days, owned a 1963 Chevrolet Corvette, admittedly a highly powered vehicle, commonly referred to as a sports car. Plaintiff, a registered dental hygienist, was a night student at Tulsa University, as was Lang, and both owned sport-type automobiles of a less powerful type, and evinced some interest in sports cars generally. On this evening, after completing their classes, they drove their individual cars to the apartment where both were extended an invitation to join a social gathering in defendant's apartment, which they accepted. Upon entering the apartment Lang accepted a mixed drink of liquor, but plaintiff declined at that time. After visiting briefly plaintiff went to her own apartment, changed into casual clothes and attempted to complete a long distance call, consuming some 15--25 minutes time.

Upon rejoining the party plaintiff accepted a mixed drink, and visited with other guests, and walked outside to examine defendant's sports car, when Lang approached with the keys to the car. Accepting an invitation to accompany him to another boy's home both, according to plaintiff, poured out their drinks and drove the Corvette to one Duenner's residence. After meeting Duenner's family and examining a sports car this boy was repairing, the three young people re-entered the Corvette to return to the party. However, on the return trip they traveled west on the 51st Street bypass a short distance before turning around. Lang was driving and both plaintiff and Duenner at one time asked that he slow down, which he did immediately. Thereafter both plaintiff and Duenner drove the car for short distances, but when near the apartment Lang resumed driving. To this point, other than having cautioned Lang once as to speed, nothing had occurred to cause plaintiff any apprehension, since Lang had driven in a proper and reasonable manner.

At the intersection of South St. Louis and Thirteenth Streets Lang was proceeding in low gear at approximately 10 miles per hour when he attempted an abrupt right turn onto St. Louis. When ready to straighten up after the turn Lang accelerated suddenly, pushing the accelerator to the floor. Lang lost control of car and swerved back and forth eventually leaving the road and striking a tree, the collision throwing plaintiff into the windshield and causing permanent, disfiguring injuries.

The petition charged negligence in that, as owner of the Corvette sports car, defendant knew this vehicle was powerful and difficult to operate; Lang was a negligent, careless and reckless driver lacking experience in operating this type vehicle; having such knowledge and knowing Lang was drinking, defendant was negligent in granting Lang possession and permission to drive this car.

Defendant's answer admitted ownership of the vehicle involved, that he gave Lang permission to operate same at the time involved, and that the wreck occurred, but denied that he was present at or had anything to do with the accident or was negligent in any respect. Defendant alleged plaintiff's assumption of risk and contributory negligence. These allegations were denied by plaintiff.

The appeal from the trial court's judgment involves consideration of the ruling upon the evidence presented in support of the issues raised by these pleadings. An extended summation of the evidence is unnecessary, since all the facts which the evidence reasonably tends to establish and all inferences and conclusions reasonably deducible therefrom stand admitted. Before determination of the issues urged as grounds for reversal, we consider it appropriate to note all evidentiary matters favorable to plaintiff.

Defendant owned a new model Chevrolet Corvette, of which perhaps only one or two had been delivered in Tulsa. The car had a 340 horsepower engine which would permit rapid acceleration to 60 miles per hour within a distance of 100 feet in about 6 seconds, depending upon the individual driver, and was capable of a speed of 130 miles per hour. This car, classified as a 'big bore' machine by the Sports Car Club of America, had rapid acceleration, quick steering response and a short wheelbase. Lang owned and drove a smaller and less powerful type sports car, but prior to this day never had driven a car as powerful as this Corvette. At the time Lang was given the car keys defendant had mixed more than one drink of intoxicants, and knew that Lang was drinking, and also that Lang and defendant had been involved in a prior auto accident.

Plaintiff contends the trial court erred in sustaining defendant's demurrer to the evidence. This contention is based upon the general text rule, stated in 8 Am.Jur.2d, Automobiles, etc. § 573:

'* * * The owner of a motor vehicle who loans the vehicle to an incompetent or unfit person, knowing, or from the circumstances eing charged with knowledge, that such person is incompetent or unfit to drive, may be held liable for an injury negligently inflicted by the use made of it by that driver, although such use at the time of the injury is beyond the scope of the owner's consent, provided it is established that the injury complained of was proximately caused by the driver's incompetence or unfitness. While a motor vehicle is generally not regarded as an inherently dangerous instrumentality, and the owner thereof is not generally liable for its negligent use by another to whom it is entrusted, liability may arise if the owner permits opration of his motor vehicle by one whom he knows or should know to be so incompetent, inexperienced, or reckless as to make the vehicle a dangerous instrumentality when operated by such person.'

It is asserted that this Court has adopted such rule, as evidence by our decisions in Coker v. Moose, 180 Okl. 234, 68 P.2d 504; Berg v. Bryant, etc., Okl., 305 P.2d 517, and National Trailer Convoy, Inc. v. Saul, Admx., Okl., 375 P.2d 922, which will be discussed hereafter. By way of application of the rule plaintiff argues this automobile was a fast, quick steering, racing machine, unsuited for operation upon public streets by an inexperienced driver whose judgment was impaired by drinking. And, when defendant permitted Lang to take over possession of the car under these circumstances such conduct constituted negligence as a matter of law, particularly since the type of vehicle has a definite bearing upon the reasonableness of the owner's entrustment of the chattel.

The amended petition under which defendant was brought into the action charged negligence upon three different grounds. One act of negligence charged was in permitting Lang to drive the car when defendant knew, or should have known, that Lang was a negligent, careless and reckless driver. Plaintiff attempted to introduce testimony concerning a prior automobile collision, at an unspecified date, between vehicles operated by Lang and defendant. Objection to such testimony was sustained by the trial court. No evidence revealed the time or curcumstances surrounding such occurrence. Generally evidence of an automobile driver's negligence on other occasions, or of habitual or customary manner of driving, is inadmissible to prove negligence. This for the reason that conduct at other times, and places are unreliable criteria for determining what a person's conduct was at a particular time and place. 61 C.J.S. Motor...