Smittle v. Illingsworth

• Decision Date: 03 July 1962
• Docket Number: No. 39694,39694
• Citation: 373 P.2d 78
• Parties: Robert S. SMITTLE, Plaintiff in Error, v. James H. ILLINGSWORTH, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 78

373 P.2d 78

1962 OK 167

Robert S. SMITTLE, Plaintiff in Error, v. James H. ILLINGSWORTH, Defendant in Error.

No. 39694.

Supreme Court of Oklahoma.

July 3, 1962.

Syllabus by the Court

1. All facts which the evidence tends to prove in the slightest degree, and all inferences or conclusions which may be reasonably and logically drawn therefrom, stand admitted by a demurrer to the evidence, and the trial court cannot weigh conflicting evidence, but must treat as withdrawn from his consideration all evidence which is most favorable to the demurrant.

2. The essential elements of a cause of action based on negligence may be inferred from all the facts and circumstances, and where the circumstances are such as to remove the case from the realm of conjecture and place it within the sphere of legitimate and rational inferences from established facts, a prima facie case is made.

3. The question of whether evidence is entirely lacking in probative force because of its remoteness in terms of time or place must be controlled by the usual nature and state of the things sought to be proved thereby or inferred therefrom and by the particular circumstances of the case, and the trial judge is clothed with wide discretion in determining such question.

4. The operation of a motor vehicle on the wrong side of the roadway, in violation of the statute, constitutes prima facie evidence of negligence.

5. There is no abuse of judicial discretion in granting a new trial, where it is apparent from the examination of the entire record that the trial court erroneously sustained a demurrer to plaintiff's evidence.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Action to recover damages sustained in an automobile collision. After sustaining defendant's demurrer to the evidence, trial court granted plaintiff a new trial. Defendant appeals. Affirmed.

Rucker, Tabor, Best, Sharp & Shepherd, Joseph A. Sharp and O. H. 'Pat' O'Neal, Tulsa, for plaintiff in error.

Werner & Childers, Tulsa, for defendant in error.

JACKSON, Justice.

This litigation was occasioned by a motor vehicle collision occurring on March 8, 1957, at approximately 10:00 p. m. While driving his 1947 Chrysler automobile west on Pine Street in Tulsa, Oklahoma, James H. Illingsworth--plaintiff below and defendant in error on appeal--was struck by a 1956 Chevrolet car travelling in the opposite (easterly) direction. The collision took place on Pine Street a short distance east of Lynn Lane Road. Plaintiff, who sought damages for injuries sustained in this accident, instituted the present action against Bill Burrell and Robert S. Smittle, alleging, among other things, that he was struck by a 1956 Chevrolet automobile, being driven at that time 'by one or the other' defendant 'over the centerline' (of Pine Street) and 'at a reckless, excessive rate of speed'. The trial court discharged the jury after sustaining a demurrer to the evidence interposed by each of the defendants. On plaintiff's motion a new trial was allowed as against defendant Smittle only. This is an appeal by Smittle who complains of error in granting a new trial. The correctness of the lower court's decision, insofar as it affects defendant Burrell, is not challenged and does not concern us on this appeal. Our reference to the parties before us will be by their names or designation below.

Defendant asserts there was error in allowing plaintiff a new trial. His chief argument is that plaintiff's evidence utterly failed to identify him as the driver of the 1956 Chevrolet automobile at the time of the collision in question. While there is no direct proof on this point in controversy, the record discloses testimony that defendant did in fact drive the Chevrolet car and remained continuously in the driver's seat from the moment the car left Cotton's Drive-Inn on East Admiral at 8:00 p. m. on the evening of the accident up to a point of time when that car, while still in motion, was proceeding on Pine Street in an easterly direction or toward the scene of the accident. During the entire interval between leaving Cotton's Drive-Inn and arriving on Pine Street defendant and three other known occupants of the car in question were on a 'joy ride' or to use the language of the witness 'just went out in the country side * * * riding around on the roads'.

Defendant takes the position that this testimony lacks probative value to show that he was in fact operating the car when the collision occurred. He also urges that plaintiff cannot invoke the so-called presumption of the continuance of an existing condition, because this rule is applicable only to matters which are reasonably static in nature and not to ephemeral matters such as the operation of a car by a teenager. See in this connection, 31 C.J.S. Evidence § 124, p. 736 and cases cited therein.

As we view defendant's argument, he is confusing a presumption of law with one of fact. A presumption of law is a mandatory deduction which the law expressly directs to be made from particular facts, while a presumption of fact is synonymous with 'that mental process by which the existence of one fact is inferred from proof of some other fact or facts with which experience shows it is usually associated by succession or coexistence'. Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65, 69, 32 A.L.R. 1490; Wigmore on Evidence, 3rd Ed., § 2491, p. 288; 31 C.J.S. Evidence § 116, p. 726. Reduced to its articulate simplicity, the question before us is whether the testimony as outlined may warrant, as a matter of law, a legitimate and rational inference that defendant was the driver of the Chevrolet car, or is too remote in terms of time or place to furnish a basis for such deduction.

There are several decisions from other jurisdictions in which the courts sustained verdicts based on similar circumstantial evidence concerning the identity of the defendant as the operator of the car at the time of the collision. Claussen v. Johnson's Estate, 224 Iowa 990, 278 N.W. 297, 298; Flick et al. v. Shimer, 340 Pa. 481, 17 A.2d 332, 334; Bowman v. Central R. Co. of New Jersey et al., 27 N.J.Super. 370, 99 A.2d 423, 425; Morgan v. Peters, 148 Pa.Super. 88, 24 A.2d 644, 645; Erickson v. Paulson, 251 Minn. 183, 87 N.W.2d 585, 587. In the last cited case we find the language of the court especially appropriate in the case at bar:

'There is no dispute that decedent was driving as the party left Elbow Lake. Elbow Lake is but 14 miles from Hoffman where the accident occurred. No one testified that the car stopped again, or that anyone else got in the...