McCarley v. Durham

• Decision Date: 02 February 1954
• Docket Number: No. 35726,35726
• Citation: McCarley v. Durham, 266 P.2d 629, 1954 OK 35 (Okla. 1954)
• Parties: McCARLEY v. DURHAM.
• Court: Oklahoma Supreme Court

Page 629

266 P.2d 629

1954 OK 35

McCARLEY v. DURHAM.

No. 35726.

Supreme Court of Oklahoma.

Feb. 2, 1954.

Syllabus by the Court.

The fact that evidence properly admitted as tending to show prior recklessness of a defendant's minor child and codefendant must later be disregarded by the jury in its consideration of plaintiff's case against the minor defendant alone, because of the sustaining of a demurrer of the parent to the evidence against him upon the ground of failure to prove he had knowledge of recklessness when permission to drive his automobile was given, is not necessarily reversible error, especially where the trial court instructed the jury to not consider such evidence, and it does not appear that the jury disregarded the instruction or was mislead, and where other evidence of similar tenor was introduced without objection.

John A. Cochran, Tulsa, for plaintiff in error.

D. F. Rainey and John Barksdale, Okmulgee, for defendant in error.

WILLIAMS, Justice.

Plaintiff sued defendants herein for damages resulting from an automobile accident. Defendants were father and son; the son, a minor, was the driver of the car which struck plaintiff's car, and the father was joined as a defendant on the ground that the son was his agent, servant and employee; and on the further ground that the son was a reckless driver and that the father knew, or should have known such to be the case; that in spite of such knowledge, or imputed knowledge, he allowed his son to drive the car.

At the conclusion of plaintiff's evidence, the defendant father demurred to the evidence, and the demurrer was sustained as to him. Thereafter plaintiff recovered judgment against the son, who prosecutes this appeal through his next friend.

The sufficiency of the evidence to sustain the verdict and judgment is not challenged. Defendant's brief lists five assignments of error, but they are all argued under one proposition which is not clearly stated. The gist of the proposition is apparently (1) error in the admission of evidence and (2) that the opening statement, pleadings, questions and plan of plaintiff's case show that the father was joined as a defendant in bad faith, merely for the purpose of making admissible evidence of previous allegedly reckless driving on the part of the son; that as a result of the admission of such evidence defendant son was prevented from having a fair trial, especially in view of the fact that the father's demurrer to the evidence as to plaintiff's cause of action against himself was sustained.

The evidence concerned under (1) above was the following testimony by a police officer:

'Q. George, did you ever have any driving trouble with him before this date?

'Mr. Cochran: Object to this. Can have no effect upon this lawsuit. He has got to show that this knowledge was carried to his father.

'The Court: Got to show such condition. Overruled.

'Mr. Cochran: Exception.

'Mr. Rainey: You may answer.

'A. Yes sir. I used to be on the Motorcycle. Traffic Department.

'The Court: Confine it to 'motor vehicle'. Anything else wouldn't have any effect on this.

'Mr. Cochran: Let's make one objection, and objection to all questions pertaining to this.

'A. I have stopped him a number of times on his motor scooter. After he got his first car. I guess it was his first one. I have stopped him several times and warned him.

'Q. That is, you would just pull up beside him, and warn him about his manner of driving? A. Yes.

'Q. What was the matter with his driving, both on motor scooter and automobile? A. He was driving too fast. Speeding.'

In connection with the above testimony, the record shows that on at least two occasions the court clearly and explicitly instructed the jury as to the basis for its admission. On one occasion he said:

'* * * Any act of the defendant Robert McCarley, with reference to reckless driving that happened prior to this accident, if it is proved the father knew it, you will be instructed on it, as Mr. Rainey said. * * * Evidence that he might have been reckless would have nothing to do with this lawsuit, unless it is proved that his father knew it. * * * You won't pay any attention to his previous reckless driving, unless it is connected. * * *'

After the demurrer of the defendant father to the evidence had been sustained, the court said to the jury:

'Ladies and Gentlemen: In line with the discussion I had with you this morning with reference to permitting evidence to come in, to the prior driving of the defendant, Robert McCarley. Herman McCarley is no longer in this suit so far as the suit against him is concerned. The Court has held that they didn't connect the defendant, Herman McCarley, with any knowledge that he knew of any recklessness on his boy's part. Which means that you won't consider any testimony that has come into this case with reference to the driving of Robert McCarley, the boy. You will try the case purely on what happened the night of the accident. Mr. Herman McCarley is still in the lawsuit so far as his Cross-Petition is concerned, in which he asked for damages to his car. Now, Gentlemen, is that sufficient? (Emphasis supplied.)

'Mr. Cochran: That is sufficient.'

The record also shows that a few minutes after the accident, the defendant son said to a witness: 'I wonder what they are going to think of this. I just got it fixed up from an accident I had three (3) weeks ago.' No objection was made to this testimony, and it was admissible as a part of the res gestae.

See First National Bank in Tonkawa v. Beatty, 172 Okl. 47, 45 P.2d 158, wherein the court said:

'A party cannot complain of the admission of evidence over his objection, where he permits evidence of the same tenor to be admitted without objection.'

In support of his position, defendant cites Kurn v. Radencic, 193 Okl. 126, 141 P.2d 580, to the effect that 'proof of an act charged against a person may not be proved by showing a like previous act to have been committed by the same person.' This rule of law is inapplicable under the fact situation here involved, for the reason that the record in the case at hand conclusively shows that evidence of the previous driving record of the defendant son was not admitted against him for the purpose of showing his negligence in the accident in question (or for any purpose), but was admitted against the father on the theory that the father knew of his son's alleged reckless driving habits but still allowed him to drive the car, and that the granting of permission to use the car under such circumstances amounted to negligence upon the part of the father.

That it was proper, as a matter of pleading, for the father to be joined as a codefendant, under the circumstances alleged, is shown by the following rule from Coker v. Moose, 180 Okl. 234, 68 P.2d 504, wherein a mother and son were sued as codefendants:

'Where the owner of an automobile permits...