Shoemake v. Stich

• Decision Date: 15 April 1975
• Docket Number: No. 46633,46633
• Citation: Shoemake v. Stich, 534 P.2d 667 (Okla. 1975)
• Court: Oklahoma Supreme Court
• Parties: Dale SHOEMAKE, Appellant, v. Roger STICH, d/b/a Aamco Automatic Transmissions and Daniel Lyon, Appellees.

Page 667

534 P.2d 667

Dale SHOEMAKE, Appellant, v.Roger STICH, d/b/a Aamco Automatic Transmissions and Daniel Lyon, Appellees.

No. 46633.

Supreme Court of Oklahoma.

April 15, 1975.

Dale Shoemake(plaintiff) sought recovery of damages from Roger Stich and Daniel Lyon for personal injuries suffered while riding in an automobile driven by Lyon.Recovery was sought against Stich on ground that he entrusted the vehicle to Lyon, who was known to be an excessive user of intoxicants.Trial Court sustained demurrer of Stich to evidence of Shoemake, and Shoemake appeals.Reversed.

Ed Abel, Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, for appellant.

Loyd Benefield and Donald R. Wilson, Benefield, Shelton & Johnson, Oklahoma City, for appelleeRoger Stich, d/b/a Aamco Automatic Transmissions.

DAVISON, Justice:

Dale Shoemake(plaintiff below) appeals from an order and judgment sustaining the demurrer of Roger Stich, d/b/a Aamco Automatic Transmissions (defendant below) to the evidence of Shoemake, in Shoemake's action for damages against Stich and one Daniel Lyon, and rendering judgment for the defendant Stich.

Shoemake has included Daniel Lyon(defendant below) as an Appellee in the caption of this appeal, but presents and claims no error in connection with the judgment for damages that was rendered in favor of Shoemake and against Lyon in the trial court.The inclusion of Lyon's name in the caption is irrelevant to our disposition of this matter.

Shoemake's action against Stich for damages for personal injuries was based on the rule of law charging the owner of an automobile (Stich), or one having possession and control of an automobile, with liability for injury or damage resulting from the negligence of an incompetent, reckless, careless, or unqualified driver to whom the vehicle is entrusted by such person.

In considering the trial court's action sustaining the demurrer of the defendant Stich to the evidence of plaintiff Shoemake we are presented with the question of whether Shoemake's evidence and all reasonable inferences to be drawn therefrom, construed in the light most favorable to Shoemake, was sufficient to reasonably tend to establish a cause of action against Stich.Oklahoma City v. Prieto, Okl., 482 P.2d 919;Lawson v. Lee Eller Ford, Inc., Okl., 375 P.2d 913, 916.

There is no controversy that Shoemake was injured while riding as a passenger in a car driven by Lyon when the vehicle ran into the rear of a parked automobile.The vehicle in which Shoemake was a passenger was owned by Stich.

We give the following resume of plaintiff Shoemake's evidence.Shoemake's testimony was: that both he and defendantDaniel Lyon were employees of defendant Stich; that Stich would acquire title to automobiles in connection with the operation of his business and would permit his employees, including Shoemake and Lyon, to drive these vehicles; that Lyon was a heavy drinker and would come to work 'hung over, slightly intoxicated' and sometimes would not come to work at all, and had observed Lyon take drinks during the noon hour; that he had seen Lyon drive automobiles at Aamco while in the above described condition on more than one occasion.Shoemake further testified he had discussed the above conduct of Lyon with Stich on several occasions; that Stich talked to Lyon a couple of times concerning this conduct, and had fired Lyon on two occasions, but had let Lyon come back because he was a good salesman; that he(Shoemake) had been driving the vehicle when Stich told him to let Lyon have the car for transportation to Enid, Oklahoma, and while in Enid, to work for Aamco in Enid for several weeks, and that he(Shoemake) related to Stich information from Enid that Lyon was having problems with his drinking in Enid and that sometimes it was necessary to go and get Lyon at his motel room to come to work.

Shoemake further testified Lyon returned to Oklahoma City(Saturday, February 6, 1971) and that about 2:30 (after Aamco had closed for the day)he and Lyon went to a bar and each had one drink of bourbon and played pool, and he(Shoemake) came back to the Aamco place of business for about 45 minutes to check things, and then returned to the bar and played pool with Lyon until sometime before 6 P.M., when they both returned to Aamco; that he only saw Lyon have one drink; and that they left in the automobile shortly after 6:00 P.M., with Lyon driving and Shoemake with his head back against the seat and not looking down the street, and proceeded across an intersection, and 'we hit a car, a parked car.'

The above testimony regarding Lyon drinking when at the Aamco shop was supported by two additional witnesses.

An officer of the Oklahoma City Police Department testified for Shoemake that the accident...