Coker v. Moose
| Decision Date | 02 February 1937 |
| Docket Number | Case Number: 25747 |
| Citation | 68 P.2d 504,180 Okla. 234,1937 OK 67 |
| Parties | COKER et al. v. MOOSE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - REVIEW - Question of Negligence One of Fact for Jury.
The question of negligence is one of fact for the jury, and where there is evidence reasonably tending to support the judgment of the court thereon, the same will not be disturbed on appeal.
2. AUTOMOBILES - Liability of Owner of Car for Injuries Caused by Son Known by Owner to Be Reckless Driver.
Where the owner of an automobile permits her son, who is known to her to be a careless, reckless, and incompetent driver, to drive her automobile upon a public highway, and injury results from his careless and reckless driving of such automobile, such owner is chargeable with negligence and is properly held liable for the injury.
3. SAME - Proper Inference That Driver Had Owner's Permission to Drive Car.
The jury may infer that the driver of an automobile had implied permission and authority to drive same where the owner thereof placed the automobile under his direction and the keys to same in his hands.
Appeal from Superior Court, Seminole County; C. Guy Cutlip, Judge.
Action by Velma Moose and Jurhee Moose against Frank Coker and Jennie Lasley. Judgment for plaintiffs, and defendants appeal. Modified as to amount and affirmed.
Billingsley & Kennerly, Ledbetter & Shunatona, George F. Short, and Welcome D. Pierson, for plaintiffs in error.
R.N. Chase, Homer Bishop, and H.H. Edwards, for defendants in error.
¶1 This action was originally brought in the superior court of Seminole county by the plaintiffs to recover damages from the defendants for the death of Albert Moose, alleged to have been caused by the careless and reckless driving of a motor car upon a public highway by the defendant Frank Coker, a minor son of Jennie Lasley, who, it is alleged, permitted her said son to drive her car knowing him to be a careless, reckless, and incompetent driver, and knowing him to be addicted to the excessive use of intoxicating liquor. Plaintiffs asked damages in the sum of $75,000, but the jury returned a verdict in favor of plaintiffs in the sum of $34,250. From this verdict and the judgment of the court thereon, the defendants have brought this appeal. The parties will be referred to herein as plaintiffs and defendants, respectively, as they were designated in the trial court.
¶2 The defendant Frank Coker died after the filing of this appeal, and it appears that no revivor of the judgment against him has been had.
¶3 The defendants pleaded contributory negligence on the part of plaintiffs' decedent as a defense in the court below, and a proper instruction was given the jury upon that issue.
¶4 In determining the liability against the defendant Jennie Lasley, which was dependent upon proof that she gave her permission, express or implied, to her son Frank Coker to drive her car on the occasion of the fatal accident, this question was submitted to the jury for a special finding of fact in the form of an interrogatory as follows:
¶5 This question was answered by the jury in the affirmative.
¶6 The evidence shows that the defendant Jennie Lasley knew that her son, Frank Coker, was a careless, reckless, and incompetent driver, and that she knew of a number of serious accidents he had had while driving her car, and that she paid the repair bills. It was common knowledge in the neighborhood that he was a dangerous driver, and different persons talked with her about it, but she persisted in permitting him to drive her car. On this particular occasion she was away from home when he took the car, but she left the keys to the car in his charge. The evidence shows that he purchased a flask of whisky and some beer on the fatal trip, and that at the time of the accident he was driving at the rate of 75 to 80 miles per hour, and that the car was reeling from one side of the road to the other, and was on the wrong side of the road when the car collided with the motorcycle on which Albert Moose was riding. The whisky and the beer bottles were found, practically empty, in the car just after the wreck, and the defendant Frank Coker showed symptoms of intoxication. There was disinterested testimony to the effect that Albert Moose was traveling at a moderate rate of speed and was driving in a careful and safe manner.
¶7 The question of negligence is a question of fact, and where there is evidence reasonably tending to support the judgment of the court thereon, the same will not be disturbed on appeal. Oklahoma City v. Hayden, 169 Okla. 502, 37 P.2d 642.
¶8 The question of contributory negligence likewise is a question of fact for the jury, and when submitted by proper instruction, the foregoing rule applies with equal force.
¶9 The liability of an owner of an automobile, who knowingly permits a careless, reckless, or otherwise incompetent driver to operate his automobile, for damages resulting therefrom is recognized in this jurisdiction. In Waddle v. Stafford, 104 Okla. 192, 230 P. 855, where it was shown that Waddle permitted his daughter, an inexperienced and incompetent driver, to drive an automobile, which he had in his possession and control, upon the streets of a town, and attempting to park the car she drove over the curb and struck and injured Stafford. Stafford recovered judgment for damages on account of the injuries sustained, and the judgment was affirmed by this court on appeal. In affirming the judgment this court said in paragraph 2 of the syllabus:
"Where an individual who has possession and control of an automobile permits his daughter, who has little or no experience in driving automobiles, to drive it upon the streets of a town, and injury results because of inexperience of the driver of such automobile, the individual having possession and control of the automobile is properly held liable for the injury."
¶10 In the body of the opinion this court quotes with approval from cases from other jurisdictions as follows:
¶11 It is contended that the court erred in the giving of instruction No. 12, which is as follows:
"You are further instructed, particularly in connection with instruction No. 7, that if you believe from a fair preponderance of the evidence that the defendant Jennie Lasley left her automobile under the direction of her son Frank Coker, or where Frank Coker could use her said car, then the jury may infer that the said Frank Coker had implied permission and authority to use the same."
¶12 Exactly the same issue was involved in the case of Crowell v. Duncan, 134 S.E. 576, a Virginia case, in which the court gave the following instruction:
"(3) The court instructs the jury that, if they believe from the evidence that J.W. Crowell left said automobile in the city garage under the direction of his son, Bruce Crowell, then the jury may infer that the said...
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Pierce v. Oklahoma Property and Cas. Ins. Co., 81774
...and effect" when Gerald drives the vehicle. Oklahoma has long recognized the negligent entrustment theory of liability. Coker v. Moose, 180 Okla. 234, 68 P.2d 504 (1937); see also Bennett v. Morris Farrar Truck Co., 520 P.2d 705 (Okla.Ct.App.1974). In Shoemake v. Stich, 534 P.2d 667, 669-70......
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... ... In the case of Coker v. Moose, 180 Okl. 234, 68 P.2d 504, 507, an Oklahoma case, counsel for plaintiff, on cross-examination, in an effort to find out the name of the ... ...
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...that reasonable men might differ, negligence is a question for the jury. City of Enid v. Smith, 167 Okla. 381, 29 P.2d 765; Coker v. Moose, 180 Okla. 234, 68 P.2d 504; Dixon v. Gaso Pump & Burner Mfg. Co., 183 Okla. 249, 80 P.2d 678. ¶7 However, we are of the opinion certain matters preclud......
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Green v. Harris
... ... 5. Shoemake v. Stich, 1975 OK 55, ¶ 13, 534 P.2d 667; Berg v. Bryant, 1956 OK 336, ¶ 5, 305 P.2d 517; Coker v. Moose, 1937 OK 67, ¶ 9, 68 P.2d 504; Waddle v. Stafford, 1924 OK 309, ¶ ___, 230 P. 855. Although this cause involves negligent entrustment of ... ...