Porter v. Norton-Stuart Pontiac-Cadillac of Enid

• Decision Date: 26 January 1965
• Docket Number: No. 39829,PONTIAC-CADILLAC,NORTON-STUART,RTON-STUART,39829
• Citation: 405 P.2d 109,1965 OK 18
• Parties: Grayson A. PORTER and Sun Electric Corporation, a corporation, Plaintiffs in Error, v.OF ENID, a co-partnership composed of Sam Norton, Jr., and Stanley B. Stuart, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 109

405 P.2d 109

1965 OK 18

Grayson A. PORTER and Sun Electric Corporation, a corporation, Plaintiffs in Error, v. NORTON-STUART PONTIAC-CADILLAC OF ENID, a co-partnership composed of Sam Norton, Jr., and Stanley B Stuart, Defendant in Error.

No. 39829.

Supreme Court of Oklahoma.

Jan. 26, 1965.

Rehearing Denied July 6, 1965.

Syllabus by the Court

Where two parties are jointly liable to a third party in respect of a tort, one of them primarily for the reason that he is the actual wrongdoer, and the other secondarily and constructively under the rule of respondeat superior but without any fault having a causal connection with the third party's injuries, the latter may recover from the former the amount he has been compelled to pay as damages for the injury.

Appeal from the District Court of Garfield County; F. B. H. Spellman, judge.

Action for indemnity by Norton-Stuart Pontiac-Cadillac of Enid, a co-partnership, plaintiff, against Grayson B. Porter and Sun Electric Corporation, defendants. From judgment for plaintiff, defendants appeal. Affirmed.

Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, for plaintiffs in error.

Otjen, Carter, Huddleston & Otjen, Enid, for defendant in error.

JACKSON, Vice Chief Justice:

This indemnity action by Norton-Stuart Pontiac-Cadillac of Enid, as plaintiff, against Grayson Porter and Sun Electric Corporation, as defendants, followed the out-of-court settlement of $12,750.00 of a prior action for damages for $98,000, filed against them by Frank Smith. Of the $12,750 settlement, Norton-Stuart contributed $6,000, and in this action seeks to recover from Sun Electric that sum plus counsel fees and costs. At the time of the prior settlement, with Smith, the parties executed a stipulation reserving without prejudice for future determination the question of indemnity between the parties. Judgment of the trial court in the indemnity action was for Norton-Stuart, and defendants appeal.

The record before us shows that in 1957, Norton-Stuart sent letters to owners of Pontiac automobiles in the Enid vicinity, inviting them to appear at a designated time for a free 'Service Clinic' to be held at their place of business. It said that 'members of the Pontiac factory service organization' would give each automobile a 'complete check over from bumper to bumper'. In response to this letter, Frank Smith appeared at the proper time to have his automobile checked. Present for the purpose of conducting the 'clinic' were Norton-Stuart mechanics, experts from the Pontiac Division of General Motors Corporation, and Mr. Grayson Porter, representing Sun Electric Corporation. Arrangements for Mr. Porter to be present had been made between Sun Electric and Norton-Stuart. It appears that his purpose was two-fold: (1) to demonstrate the use of an instrument or machine manufactured by Sun Electric called an oscilloscope and (2) to attempt to sell such an instrument to Norton-Stuart. Norton-Stuart had arranged a sort of 'assembly line' operation, with different phases of the checking being done in different stalls. One such stall had been set aside for the use of Porter, and during the day Porter had been using the oscilloscope on automobiles brought in by Norton-Stuart customers, and had been instructing Norton-Stuart mechanics in its use. However, no Norton-Stuart mechanics were involved in the events leading to the injury of Smith.

Smith's automobile had been completely checked before noon with the exception of the oscilloscope operation, and he was told by the shop foreman that 'they would finish it right after lunch'. Smith testified that he returned at 1:00 P.M. and:

'* * * I came in at the front and started through the door between the front and the shop, and when I opened the door the car was sitting right in front of the door, with the hood up. * * *

'Well, it turned out to be my car; I didn't know whose car it was at the time, and just as I started to go around it, why it took off,--I mean,--you know,--it just took off real quick and knocked me down and ran over me.'

He testified briefly with regard to the extent of his injuries, and said '* * * I sued everybody that was involved; that was the only way to find out who was liable'.

Mr. Taylor, the shop foreman, was a witness to the accident. He testified that the Smith automobile was in Porter's stall 'right in front of those double doors that go into the show room floor'. He was standing behind the car, talking to a customer, when he heard the tires spin and slip on the floor; he turned and saw the car go through the doors into the show room; he saw Porter on the left side of the car with one foot on the floor and one foot inside the car. He had previously told Porter to go ahead on Smith's car (Norton-Stuart mechanics had not returned from lunch at that time).

Porter testified that just prior to the accident, he had attached 'the two leads' to the car. He had also attached a 'throttle holder' to the carburetor linkage for the purpose of making the motor run at a higher speed. With regard to the starting of the car motor, his testimony was in part as follows:

'* * * I simply reached in over the steering wheel and checked the gear around the steering wheel, turned the ignition key, and then I had withdrawn my arm and started to get back on the floor, and----

'Q. Well, let me interrupt you * * *.

* * *

* * *

'Q. All right, sir, and then in going to the ignition, did you go over the steering wheel column, or under the steering wheel column?

'A. I reached around,--well, I guess you would say under, because that was the nearest way that you could reach the key.' (Emphasis supplied in all cases above)

Earlier Porter had testified as follows:

'Q. Could you have even reached around there in a standing position such as Mr. Taylor stated he saw you in, to have gotten your hand down in there?

'A. I don't believe you could have reached it at all; you would have hit the gear shift lever.' (Emphasis supplied.)

In fairness, it must be said that in other testimony, Porter unequivocally stated that he reached 'under' instead of 'over', and denied that he touched the gear selector lever, or 'gear shift', at all after starting the car.

The Smith car was a 1956 model Pontiac with an automatic transmission. The gear selector lever, or 'gear shift', extended outward to the right from the steering wheel column. The ignition switch was also to the right of the steering wheel column. The mechanical arrangement of the gears was such that in order to move the gear selector lever from the 'neutral' position to the 'drive' position, a downward movement was necessary. The trial court's judgment in this case rests upon a conclusion that, after starting the motor, Porter accidentally moved the gear selector lever downward from the 'neutral' position to the 'drive' position.

With regard to the mechanical condition of the car, there was testimony that it was so designed that when properly adjusted, the motor would start only when the gear selector lever was in the 'park' or 'neutral' positions. Taylor, the shop foreman, and two of the General Motors factory service representatives who were present helping with the service clinic, testified that shortly after Smith had been taken to the hospital, they examined the Smith automobile and conducted certain tests upon it. They found nothing wrong with it and were unable to make the motor start when the gear selector lever was in any position except 'park' or 'neutral'. These three men all qualified as experts, and all three testified in effect that in their opinion, the sudden forward lurch of the Smith automobile while the motor was running at high speed was caused by Porter's accidental movement of the gear selector lever into the 'drive' position.

It was the position of Norton-Stuart that under these facts, it was...