Freeborn v. Holt
| Citation | 227 P. 136,100 Okla. 50,1924 OK 626 |
| Decision Date | 17 June 1924 |
| Docket Number | 13259. |
| Parties | FREEBORN v. HOLT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action for damages, where it is alleged by the plaintiff that he has been damaged by collision with an automobile, driven by the minor son of the defendant, under the age limit required by a city ordinance for drivers of automobiles, and an instruction is given by the court to the jury that such violation of the city ordinance was negligence per se, and at the request of the defendant the court refused to give the further charge to the jury that such violation of the ordinance alone would not authorize a verdict against the defendant, unless the jury further found that the violation of the municipal ordinance was the proximate cause of the injury and was not directly contributed to by want of due care on part of the plaintiff, was error and the court should have further charged the jury that the violation of said ordinance must be the proximate cause of the injury and that they must find that said violation had some causal connection with said injury.
The general rule of law is that one who does an unlawful act is not thereby placed outside the protection of the law, but that, to have this effect, the unlawful act must have some causal connection with the injury complained of.
It is a well-established rule that in a suit for damages for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown was the proximate cause of the injury complained of, no recovery can be had on account of such negligence.
Commissioners' Opinion, Division No. 5.
Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
Action by L. B. Holt against F. W. Freeborn. From a judgment for plaintiff, defendant appeals. Reversed for new trial.
West & Petry, of Tulsa, for plaintiff in error.
Hunt & Eagleton, of Tulsa, for defendant in error.
This action was commenced in the district court of Tulsa county Okl., by L. B. Holt, defendant in error, plaintiff below against F. W. Freeborn, plaintiff in error, defendant below to recover damages for the destruction of an automobile as a result of a collision between an automobile owned by plaintiff in error and the one owned by defendant in error.
The parties to this action will be referred to in this opinion as plaintiff and defendant as they appeared in the lower court.
Plaintiff alleges in his petition that he was the owner of a Dodge automobile of the value of $750, which was entirely destroyed in a collision at the intersection of two streets in the city of Tulsa, Okl., and that defendant's automobile was being driven at an excessive rate of speed by his minor son of the age of 14 years with the approval and under the authority of the defendant, and that under special ordinance of the city of Tulsa any person under the age of 16 years was forbidden to drive an automobile within said city limits, and that said collision was caused by said minor son driving said automobile into the one owned by plaintiff in a careless, reckless, and negligent manner, and prayed for judgment for $750 and costs. A copy of said city ordinance is attached to and made a part of plaintiff's petition by amendment to said petition.
The defendant answered by way of general denial but admitted that the automobile driven by his son belonged to him and that he was the owner of the Winton automobile, which was being driven in a careful and proper manner by his son and was being occupied by a daughter and another son of the defendant, and that the plaintiff carelessly and negligently drove the Dodge car against his automobile with great force and injured said car to the extent of $800, and injured his daughter, and claimed damages for medical and surgical services in the additional sum of $200; that his automobile was being driven at a moderate rate of speed in a proper and careful manner along the right-hand side of the street, and as the same approached the intersection of the two streets the plaintiff, driving at the speed of about 30 miles an hour, without warning, sign or signal, suddenly turned his automobile to the left and immediately in front of defendant's automobile and in such a manner that the collision could not have been avoided by any means whatsoever, and claimed damages in the sum of $1,000. The plaintiff replied by way of general denial.
The cause was tried to a jury and resulted in a verdict in favor of the plaintiff in the sum of $650, and a motion for new trial was filed, heard and overruled, exceptions reserved and judgment pronounced in favor of the plaintiff and against the defendant in the sum of $650 with interest at 6 per cent. from the 1st day of October, 1921, until paid and for costs.
From said judgment the cause comes regularly upon appeal by defendant to this court.
The attorneys for defendant complain of certain instructions and to the admission of certain testimony over their objections, and complain that the court did not submit to the jury the proper instruction upon the question of the age of the defendant's son, the driver of the automobile, in that he did not charge the jury that the violation of the city ordinance by defendant in permitting his son, under 16 years of age, to drive said automobile alone would not entitle plaintiff to recover in this action, but that the jury must further find that such violation was the direct and proximate cause of the accident and that the plaintiff was not guilty of contributory negligence.
Attorneys for plaintiff filed motion to dismiss the appeal for the...
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