Brigance v. Velvet Dove Restaurant

Decision Date14 June 1988
Docket NumberNo. 67710,67710
Citation756 P.2d 1232,1988 OK 68
PartiesShawn BRIGANCE and Earle Brigance, Individually, and as parent and natural guardian of Shawn Brigance, Plaintiffs/Respondents, v. The VELVET DOVE RESTAURANT, Richard Stubbs, and Jerry Rimele, Defendants/Petitioners.
CourtOklahoma Supreme Court

Appeal from the District Court of Oklahoma County; William Saied, judge.

Passenger in a one vehicle collision and his father brought action against a restaurant for negligence in serving alcoholic beverages to a noticeably intoxicated driver. Restaurant raised, in a motion to dismiss or in the alternative, for summary judgment, satisfaction of a federal court judgment against the driver as a bar to the state action. The District Court, Oklahoma County, William Saied, J., denied the motion, and certified the interlocutory order.


Ernest J. Istook, Jr., Istook & Associates, P.C., Oklahoma City, for plaintiffs/respondents.

Scott M. Rhodes, Paul B. Middleton, Huckaby, Fleming, Frailey, Chaffin & Darrah Oklahoma City, for defendants/petitioners.

SUMMERS, Justice.

The basic question in this appeal of a certified interlocutory order is whether the satisfaction of a judgment recovered by a plaintiff against a tortfeasor in federal court operates as a defense as to further proceedings in state court by the plaintiff for the same injuries against a separate but concurrent tortfeasor. We hold that it does and order the plaintiff's case dismissed.

The facts of this case are reported in Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okl.1986) ( Brigance I ). Shawn Brigance and his father Earle Brigance brought an action against the restaurant, its principal stockholder, and its employee for negligence in serving alcoholic beverages to one Jeff Johnson, alleged to have been a noticeably intoxicated person. After leaving the Velvet Dove Shawn was injured in a one car accident while riding as a passenger in the car driven by Jeff Johnson.

In Brigance I we held for the first time that one who sells intoxicating beverages for on-the-premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. The trial court's order sustaining Velvet Dove's demurrer was thus reversed, and the case was remanded to the District Court of Oklahoma County.

In the meantime the Brigances had been litigating in federal court. On June 7, 1983 (some four and one-half months before suing Velvet Dove in state court) they had filed their federal court complaint against Jeff Johnson, the driver. That case came on for jury trial on December 20 of that year and resulted in a plaintiff's verdict for $4000.00 plus costs and interest. Then the following events occurred:

February 24, 1984--The trial court in the state court case sustained Velvet Dove's demurrer to the petition, and plaintiffs elected to stand thereon.

March 26, 1984--The plaintiffs filed their petition-in-error in appeal from the February 24 Order, positing jurisdiction in this court alone.

April 23, 1984--The plaintiffs, by an agreed to Order, accepted $4235.10 from the federal court defendant "in full satisfaction of the judgment entered herein on December 20, 1983."

July 8, 1986--We reversed the state court order of February 24, 1984, holding that plaintiffs had pled a cause of action against the defendant Velvet Dove ( Brigance I ), and remanded the case for further proceedings.

July 31, 1986--Velvet Dove filed in the state district court its motion to dismiss, or in the alternative motion for summary judgment, on the basis that satisfaction of the judgment against Johnson operated as a defense to further action against Velvet Dove.

October 17, 1986--The state trial court denied Velvet Dove's motions but certified that ruling for interlocutory appeal. We have accepted the appeal by granting the petition for certiorari, and have stayed the proceedings below.

The cause of action against a commercial vendor of intoxicating beverages for on-the-premises consumption recognized in Brigance I is governed by the principles of negligence. In Green v. Sellers, 413 P.2d 522 (Okl.1966) we stated the following:

"It is axiomatic that concurrent negligence involves acts of negligence of two or more persons which, although concert is lacking, combine to produce a single injury." Id. 413 P.2d at 528.

Tortfeasors are classified as "concurrent tortfeasors" where their independent acts concur to produce a single or indivisible injury. Seattle First National Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 588 P.2d 1308 (1978). In a case such as this the commercial vendor's act of selling or furnishing an intoxicating beverage for on the premises consumption to a noticeably intoxicated person concurs with the acts of the intoxicated driver to produce the single or indivisible injury resulting from the automobile collision. Flagg v. McCann, 498 N.E.2d 76 (Ind.App.1986); Manthei v. Heimerdinger, 332 Ill.App. 335, 75 N.E.2d 132 (1947).

In All American Bus Lines v. Saxon, 197 Okl. 395, 172 P.2d 424 (1946), we stated the following:

"It is well settled that although concert is lacking, the separate and individual acts of negligence of several persons, if the acts are combined to produce directly a single injury, each defendant is responsible for the entire result, even though a defendant's act of negligence alone might not have caused the injury." Id. 172 P.2d at 429.

We stated this rule again in Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 617 (Okl.1980).

"Even though concert among the tortfeasors was lacking and the act of one codefendant alone may not have brought about the result, each is at common law responsible for the entire damage."

Where liability is joint and several, the injured party may institute several suits against the multiple tortfeasors, but satisfaction of a judgment against one of the tortfeasors bars a judgment against the other tortfeasors. Powell v. Powell, 370 P.2d 909 (Okl.1962); Cain v. Quannah Light and Ice Co., 131 Okl. 25, 267 P. 641 (1928).

In Cartwright v. MFA Insurance Co. of Columbia, Missouri, 499 P.2d 1380 (Okl.1972) we quoted with approval from Cain v. Quannah Light and Ice Co., supra.

"Although several separate suits may be brought for a joint liability, yet, where the injury is an entirety, the damage resulting therefrom cannot be apportioned among the wrongdoers, nor divided into separate demands; and, where the injured party sues one of the wrongdoers, and demands only a part of the damage which he suffered by the injury, a recovery and satisfaction therein will operate as a bar to any further claim of damage against the others." Id. 499 P.2d at 1383.

The satisfaction of the federal court judgment against Johnson thus bars a subsequent judgment against the concurrent tortfeasor, Velvet Dove.

Brigance contends that Velvet Dove did not raise in a timely manner the defense of the satisfaction of the federal court judgment. The date of the order appealed from in Brigance I was February 24, 1984, and the petition in error was filed March 26, 1984. The judgment in Federal Court was rendered on December 20, 1983. However, the date of the agreed order to disburse funds to satisfy the judgment was not until April 23, 1984.

It is the satisfaction of the prior judgment which acts as a bar. Tulsa v. Wells, 191 P. 186 (Okl.1920). Satisfaction of the federal court judgment did not occur until after jurisdiction over the cause in Brigance I had been transferred to this Court on appeal. The opinion in Brigance I was filed on July 8, 1986, and the satisfaction of the federal court judgment was then for the first time raised here by the defendants' petition for rehearing.

But a defendant may not effectively raise a defense for the first time in an appeal to this Court, City of Tulsa v. Crain, 573 P.2d 707, 709 (Okl.1978), let alone in a petition for rehearing. Brown v. State Election Board, 369 P.2d 140 (Okl.1962). Raising in this Court the defense of a prior satisfaction of judgment is improper where it had not been raised in the lower court. And because the petition in error established jurisdiction in this court alone prior to the fact of the satisfaction of the judgment, such could not have been properly tendered to the trial court. However, nothing prohibited raising the defense on remand, and that is what the defendant promptly did.

Brigance I was before this Court on the district court's dismissal of the petition on the sustaining of a demurrer. On remand, Velvet Dove raised the defense in a "motion to dismiss or, in the alternative, ...

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